Legal Affairs
2023

Nuclear Law Bulletin
No. 111

Volume 2023/2

NE A

Legal Affairs

Nuclear Law Bulletin
No. 111© OECD 2024
NEA No. 7681
NUCLEAR ENERGY AGENCY
ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENTORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENTThe OECD is a unique forum where the governments of 38 democracies work together to address the economic,
social and environmental challenges of globalisation. The OECD is also at the forefront of efforts to understandand to help governments respond to new developments and concerns, such as corporate governance, theinformation economy and the challenges of an ageing population. The Organisation provides a setting where
governments can compare policy experiences, seek answers to common problems, identify good practice andwork to co-ordinate domestic and international policies.
The OECD member countries are: Australia, Austria, Belgium, Canada, Chile, Colombia, Costa Rica, Czechia,
Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea, Latvia,
Lithuania, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, the Slovak Republic,
Slovenia, Spain, Sweden, Switzerland, Türkiye, the United Kingdom and the United States. The European
Commission takes part in the work of the OECD.
OECD Publishing disseminates widely the results of the Organisation’s statistics gathering and research on
economic, social and environmental issues, as well as the conventions, guidelines and standards agreed by its
members.

NUCLEAR ENERGY AGENCYThe OECD Nuclear Energy Agency (NEA) was established on 1 February 1958. Current NEA membership consists of
34 countries: Argentina, Australia, Austria, Belgium, Bulgaria, Canada, Czechia, Denmark, Finland, France, Germany,
Greece, Hungary, Iceland, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, the Netherlands, Norway, Poland,
Portugal, Romania, Russia (suspended), the Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Türkiye, theUnited Kingdom and the United States. The European Commission also takes part in the work of the Agency.
The mission of the NEA is:–

to assist its member countries in maintaining and further developing, through international co-operation,
the scientific, technological and legal bases required for a safe, environmentally sound and economical use
of nuclear energy for peaceful purposes;–

to provide authoritative assessments and to forge common understandings on key issues as input togovernment decisions on nuclear energy policy and to broader OECD analyses in areas such as energy andthe sustainable development of low-carbon economies.

Specific areas of competence of the NEA include the safety and regulation of nuclear activities, radioactive waste
management, radiological protection, nuclear science, economic and technical analyses of the nuclear fuel cycle,
nuclear law and liability, and public information. The NEA Data Bank provides nuclear data and computer
program services for participating countries.

Also available in French under the title:

Bulletin de droit nucléaire n° 111

LEGAL NOTICEThe Organisation for Economic Co-operation and Development assumes
no liability concerning information published in this bulletin.

This document, as well as any data and map included herein, are without prejudice to the status of or sovereignty
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Corrigenda to OECD publications may be found online at: www.oecd.org/about/publishing/corrigenda.htm.
© OECD 2024
The present version replaces the initial version released on 20 August 2024.
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Cover photos: Olkiluoto Nuclear Power Plant, Finland (M.Pakats/Shutterstock); A drawing of the ITER tokamak and integrated plant systems (ITER
Organization; CC BY 4.0 Deed).

ACKNOWLEDGEMENTS

Acknowledgements
In addition to the authors of the articles, the Organisation for Economic Co-operation andDevelopment (OECD) Nuclear Energy Agency (NEA) thanks the following individuals for theircontributions to this edition of the Nuclear Law Bulletin: Mr S. Ozaki (Japan); Ms K. Manczalová(Slovak Republic); Ms N. Kompare (Slovenia); Mr E. Anderson, Mr P. Lom and Mr E. Michel(United States); Ms A. Mildenstein (European Commission); and Mr M. D’Orsi (International
Atomic Energy Agency). The NEA also extends its gratitude to Mr S.G. Burns for his careful
review and support in finalising this edition.
This edition of the Nuclear Law Bulletin was approved by the Nuclear Law Committee
under the written procedure on 4 June 2024.
The information submitted to the NEA by these individuals represents the opinions of
the authors alone and does not purport to represent the official views or the policies of
their governments or of any other entity.

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TABLE OF CONTENTS

Table of contents

ARTICLES
Nuclear liability in respect of Ukraine’s nuclear installations under Russian
military control
by Nathalie L.J.T. Horbach and Omer F. Brown, II ................................................................ 7
The modern nuclear liability regime’s concept of “environmental damage”:
How national courts may apply it and what remedies they may provide
for such damage
by Sandra Knopp Pisi ......................................................................................................... 23
Nuclear fusion: Legal aspects
by Wolfram Tonhauser and Karoly Tamas Olajos .............................................................. 57
CASE LAW
Slovak Republic .............................................................................................................. 75
Global 2000 v. ÚJD SR ........................................................................................................... 75
United States .................................................................................................................. 76
Spent fuel storage litigation ............................................................................................... 76
Commission denial of hearing concerning export licence application ....................... 78
NATIONAL LEGISLATIVE AND REGULATORY ACTIVITIESJapan ................................................................................................................................ 81
General legislation, regulations and instruments .......................................................... 81
Slovak Republic .............................................................................................................. 86
General legislation, regulations and instruments .......................................................... 86
International co-operation ................................................................................................. 87
Slovenia ........................................................................................................................... 87
Nuclear installations ........................................................................................................... 87
United States .................................................................................................................. 88
Environmental protection .................................................................................................. 88
Nuclear safety and radiological protection(including nuclear emergency planning) ......................................................................... 90
Licensing and regulatory infrastructure ........................................................................... 90
INTERGOVERNMENTAL ORGANISATION ACTIVITY
Euratom Atomic Energy Community (Euratom) ......................................................... 93
Euratom Community activities .......................................................................................... 93
International Atomic Energy Agency........................................................................... 95
Nuclear security ................................................................................................................... 95
Nuclear liability .................................................................................................................... 96
Legislative assistance .......................................................................................................... 96
67th regular session of the IAEA General Conference ..................................................... 96

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TABLE OF CONTENTSOECD Nuclear Energy Agency ....................................................................................... 99
Meeting of the NEA Working Party on the Legal Aspects of
Nuclear Safety (WPLANS) ................................................................................................... 99
Meeting of the NEA Steering Committee for Nuclear Energy ...................................... 100
2024 International School of Nuclear Law (ISNL) .......................................................... 100
Third NEA Stakeholder Involvement Workshop on Optimisation in
Decision Making ................................................................................................................. 101
Roadmaps to New Nuclear Conference .......................................................................... 101
NEA publications of interest ............................................................................................ 101
NEWS BRIEFS ................................................................................................................ 103
LIST OF CORRESPONDENTS TO THE NUCLEAR LAW BULLETIN ............................. 105

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Nuclear liability in respect of Ukraine’s nuclear installations
under Russian military control
by Nathalie L.J.T. Horbach and Omer F. Brown, II*

1. Introduction
The occupation of two Ukrainian nuclear installations by armed soldiers of the RussianFederation (Russia) within the context of the armed conflict 1 in Ukraine presents complex
issues about liability for nuclear damage that could be caused by any off-site andpotentially transboundary radioactive release. The Chernobyl Nuclear Power Plant(Chernobyl Plant) (operated by the State Specialized Enterprise “Chernobyl Nuclear Power
Plant”) and the Zaporizhzhia Nuclear Power Plant (ZNPP) (operated by the National Nuclear
Energy Generating Company [Energoatom]) have been, and apparently continue to be,licensed by the State Nuclear Regulatory Inspectorate of Ukraine (SNRIU). 2 However, the
SNRIU had indicated that regulatory control over both nuclear installations became
impossible to exercise and that the nuclear power plants’ staff was obstructed from

*

1.

2.

Nathalie Horbach is an independent nuclear liability expert based in Amsterdam, theNetherlands, with a PhD in international public law. Omer Brown is a nuclear liability
lawyer based in Washington, DC, United States (US) with a Juris Doctor. Both are membersof the International Atomic Energy Agency (IAEA) International Expert Group on Nuclear
Liability (INLEX). The facts contained and ideas expressed in this article are theresponsibility of the authors alone. The article should not be relied upon as a definitive
legal opinion as to how liability for actual nuclear incidents would be handled. The authors
wish to thank Dr Christiane Ahlborn (Assistant Professor of Public International Law at
Trinity College Dublin and former IAEA Legal Officer) for her valuable input.
International Law Commission (ILC) (2011), “Draft Articles on the Effects of Armed Conflicts
on Treaties, with Commentaries”, Yearbook of the International Law Commission, 2011, Vol. II,
Part 2, A/CN.4/SER.A/2011/Add. 1 (Part 2), United Nations (UN), New York and Geneva,
p. 106. Draft Article 2 defines “armed conflict” as “a situation in which there is resort toarmed force between States or protracted resort to armed force between governmental
authorities and organized armed groups”.
Regardless of whether or not the ZNPP continues to be licensed by the SNRIU, this does
not change the operator’s liability and/or the subsidiary liability of the Ukrainian state
under the nuclear liability conventions. In the beginning of July 2023, the SNRIU issued
regulatory orders to limit the operation of all six units to a cold shutdown state. IAEA, Press
Release, “Update 173 – IAEA Director General Statement on Situation in Ukraine”, IAEA
Press Release No. 71/2023 (12 July 2023).

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traveling to and from the sites. 3 The IAEA Director General’s Summary Reports on thesituation at the ZNPP underlined that the “seven indispensable pillars for nuclear safety
and security” had been compromised, thereby significantly raising the risk of a nuclear
accident or incident. 4 The IAEA Director General called for the establishment of a nuclear
safety and security protection zone around the ZNPP, which, having been subjected tocontinued shelling within Ukraine, represented “a constant threat to nuclear safety andsecurity with potential impact on critical safety functions that may lead to radiologicalconsequences with great safety significance”. 5
The IAEA Director General’s statements and reports were supported by a European
Union (EU) statement that underlined that the EU “has repeatedly stressed the need toconsider also new legally binding international rules specifically prohibiting armed attacks
against any nuclear installation devoted to peaceful purposes, as called for by the IAEA
General Conference resolutions, which refer to the UN Charter.” 6 In the meantime, IAEA
teams were granted full access to the ZNPP and Chernobyl Plant for inspection andverification, and so far, no radiological release has occurred, as the IAEA Director General

3.

4.

5.

6.

8

See SNRIU (2022) “Chornobyl NPP Facilities, Current Situation (March 24, 2022)”, SNRIU:News https://snriu.gov.ua/en/news/chornobyl-npp-facilities-current-situation-march-242022 (“As of 24 March 2022, all Chornobyl NPP facilities and facilities located in the
Exclusion Zone remain under the control of the aggressor country’s military. The regulatory
control over the state of nuclear and radiation safety at the Chornobyl NPP site and in the Exclusion
Zone, as well as control over nuclear materials is currently impossible to exercise.” [emphasis
added]) (accessed 24 Jan. 2024); SNRIU (2022), “Information on the ZNPP Current Status(26.03.2022)”; SNRIU: News, https://snriu.gov.ua/en/news/information-znpp-currentstatus-26032022 (“The Zaporizhzhia NPP and Enerhodar city are occupied by the Russian
military units since 4 March 2022. [...] The regulatory oversight over nuclear and radiation safety
directly at the ZNPP site is currently impossible to exercise, but the SNRIU continues maintaining
contact with the ZNPP management.” [emphasis added]) (accessed 24 Jan. 2024). The
regulator also informed the IAEA, which was closely monitoring the situation:
Out of the country’s 15 operational reactors at four sites, the regulator said eight
were continuing to operate, including two at Zaporizhzhya, three at Rivne, one at
Khmelnytskyy, and two at South Ukraine. The other reactors are shut down forregular maintenance, it added. In relation to safeguards, the Agency said that thesituation remained unchanged from that reported previously.
IAEA, Press Release, “Update 33 – IAEA Director General Statement on Situation in Ukraine”,
IAEA Press Release No. 47/2022 (26 Mar. 2022). On 31 March 2022 Russian forces, in writing,transferred control of the Chernobyl Plant to Ukrainian personnel. IAEA, Press Release,“Update 38 – IAEA Director General Statement on Situation in Ukraine, IAEA Press Release
No. 54/2022 (31 Mar. 2022).
See IAEA (2023), “Nuclear Safety, Security and Safeguards in Ukraine: February 2022 –February 2023”, IAEA, Vienna, Foreword. See also IAEA (2022) “Nuclear Safety, Security and
Safeguards in Ukraine: Summary Report by the Director General, 24 February – 28 April 2022”,
IAEA, Vienna, pp. 5-6; IAEA (2022), “Nuclear Safety, Security and Safeguards in Ukraine:
2nd Summary Report by the Director General, 28 April – 5 September 2022”, IAEA, Vienna,
pp. 4-5 (Summary report for 28 April – 5 September 2022).
Summary report for 28 April – 5 September 2022, supra note 4, p. 13. See also Dahl, F. (2022),“IAEA Proposal for Ukraine Nuclear Safety and Security Protection Zone Wins Support as
Talks Begin on Its Establishment”, IAEA: News, www.iaea.org/newscenter/news/iaeaproposal-for-ukraine-nuclear-safety-and-security-protection-zone-wins-support-as-talksbegin-on-its-establishment (“Further underlining the need for such a zone, there has beenrenewed shelling at the ZNPP site this week, damaging electrical cables and temporarily
forcing one of the six reactor units to rely on emergency diesel generators.”) (accessed 24 Jan.
2024); Nuclear Engineering International (2022), “Russia Reaffirms Support for ZNPP Security
Zone”, Progressive Media International, London, www.neimagazine.com/news/newsrussiareaffirms-support-for-znpp-security-zone-10419401 (accessed 26 Apr. 2024).
Delegation of the European Union to the International Organisations in Vienna, Press Release,“EU Statement at IAEA BoG on Nuclear Safety, Security and Safeguards in Ukraine, asdelivered on 17 November 2022” (17 Nov. 2022), available at: www.eeas.europa.eu/delegations/vienna-international-organisations/eu-statement-iaea-bog-nuclear-safety-security-andsafeguards-ukraine-delivered-17-november-2022_en?s=66 (accessed 26 Apr. 2024).
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confirmed, adding that “[a]ny military firepower directed at or from the facility would
amount to playing with fire, with potentially catastrophic consequences.” 7
However, in this context and as will be discussed below, should a nuclear incident occur
at either of the nuclear installations (including from any other buildings on the site or any
transport of nuclear materials to and from the site), Ukraine and the Ukrainian operators
remain, in principle, liable for any resulting nuclear damage. This article examines in somedetail the international nuclear liability conventions’ provisions on “war-like” acts and theconventions’ readily available travaux préparatoires to determine under what circumstancesthese were intended to exonerate operators of nuclear installations from liability.
Ukraine is a contracting party to the IAEA’s 1963 Vienna Convention on Civil Liability
for Nuclear Damage, 8 and has enacted legislation to implement it. 9 A fundamental featureof the 1963 Vienna Convention and the other nuclear liability conventions is that the civil
liability for nuclear damage is channelled exclusively to the operator, to the exclusion of
any other person, and that this liability is “absolute”. 10 At the same time, the 1963 Vienna
Convention and the other nuclear liability conventions include an exception to, or
exoneration from, the operator’s absolute liability where nuclear damage is “directly due”

7.

8.

9.

10.

IAEA, Press Release, “Director General Grossi Alarmed by Shelling at Ukraine NPP, says
IAEA Mission Vital for Nuclear Safety and Security”, IAEA Press Release No. 124/2022(6 Aug. 2022). The IAEA Director-General added in a statement that: “An increased risk ofmilitary activities near the Zaporizhzhya Nuclear Power Plant could potentially endanger
nuclear safety and security at this major facility. I call on all sides to refrain from any actionthat could lead to a nuclear accident with potential consequences for public health andthe environment.” IAEA, Press Release, “Update 176 – IAEA Director General Statement on
Situation in Ukraine”, IAEA Press Release No. 76/2023 (29 July 2023).
Vienna Convention on Civil Liability for Nuclear Damage (1963), IAEA Doc. INFCIRC/500, 1063
UNTS 266, entered into force 12 Nov. 1977 (1963 Vienna Convention). Ukraine signed the 1997
Protocol to Amend the Vienna Convention and the 1997 Convention on Supplementary
Compensation for Nuclear Damage (CSC) on 19 September 1997, but it has not ratified eitherof the conventions and is thus not bound by their provisions. See IAEA (2023), “Protocol toAmend the Vienna Convention on Civil Liability for Nuclear Damage”), available at:www.iaea.org/sites/default/files/23/09/protamend_status.pdf (accessed 26 Apr. 2024); IAEA
(2020), “Convention on Supplementary Compensation for Nuclear Damage” (last change ofstatus as of 18 Sept. 2019), available at: www.iaea.org/sites/default/files/22/06/supcomp_status.pdf (accessed 26 Apr. 2024).
As a contracting party to the 1963 Vienna Convention, Ukraine is in treaty relations withmost nearby countries, including Russia, which is also a contracting party to the Vienna
Convention. See IAEA (2023), “Vienna Convention on Civil Liability for Nuclear Damage” (lastchange of status as of 25 Sept. 2023), available at: www.iaea.org/sites/default/files/23/09/
63_vc_status.pdf (accessed 26 Apr. 2024). Ukraine is also a contracting party to the Joint
Protocol Relating to the Application of the Vienna Convention and the Paris Convention(1988), IAEA Doc. INFCIRC/402, 1672 UNTS 293, entered into force 27 Apr. 1992 (Joint Protocol).
Since Ukraine ratified the Joint Protocol, contracting parties to the Paris Convention on Third
Party Liability in the Field of Nuclear Energy and to the Joint Protocol are considered
contracting parties for the application of the Ukrainian Law on Civil Liability for Nuclear
Damage and its Financial Security. The Ukrainian Law does not address whether it applies
to nuclear damage suffered in states with which Ukraine does not have nuclear liability
treaty relations, which may be interpreted to mean that it would compensate damage
wherever suffered. See NEA (2002), “Unofficial Translation of Ukraine Law on Civil Liability
for Nuclear Damage and its Financial Security”, Nuclear Law Bulletin, No. 69, Supplement,
OECD Publishing, Paris, pp. 11-17.
See e.g. 1963 Vienna Convention, supra note 8, Article IV(1) (“The liability of the operator
for nuclear damage under this Convention shall be absolute.”).

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to war-like events. 11 Some possible scenarios can be envisaged. One scenario is where anuclear power plant is controlled by occupying forces resulting in the operator being
unable to secure safety measures, and there is a radioactive release. The question arises
whether, under such a scenario, the release should be regarded as a nuclear incident
directly linked with the armed conflict. Correlatively, where the intention of theoccupation was to prevent rogue elements of the war from causing harm, then it likely
cannot be said that the release was directly caused by the war-like event.
As discussed infra, the existing operators of the ZNPP and the Chernobyl Plant would
remain absolutely liable for any off-site nuclear damage, unless they could show that such
nuclear damage was directly due to “an act of armed conflict or hostilities” committed by the
Russian military. This may be a high standard for an operator to satisfy. For example, the warrisk exclusion in many insurance policies applies to nuclear damage caused either directly or
indirectly.12 If insurance is not available in Ukraine for a war-like act committed indirectly(and thus no exoneration of liability is applicable under the nuclear liability conventions), thenthe conventions require the Ukrainian state to guarantee the compensation to cover theliability limit fixed for the operator within the national legislation. 13

11.

12.

13.

10

See ibid., Article IV(3)(a) (“No liability under this Convention shall attach to an operator for
nuclear damage caused by a nuclear incident directly due to an act of armed conflict,hostilities, civil war or insurrection.”) (emphasis added). The 1997 Protocol to Amend theVienna Convention (to which Ukraine is not a contracting party) amended Article IV(3)(a)to provide: “No liability under this Convention shall attach to an operator if he proves thatthe nuclear damage is directly due to an act of armed conflict, hostilities, civil war or
insurrection.” Protocol to Amend the Vienna Convention on Civil Liability for Nuclear
Damage (1997), IAEA Doc. INFCIRC/566, 2241 UNTS 302, entered into force 4 Oct. 2003 (1997
Protocol to Amend the Vienna Convention) (emphasis added). The 1960 and 2004 versionsof the Paris Convention and the Convention on Supplementary Compensation for Nuclear
Damage contain the same language as the 1963 Vienna Convention, i.e. they do not
explicitly state the operator needs to prove the damage is directly due to a war-like offense,
although the difference is unlikely to have much practical effect since, in any case, theburden of proof is reversed in case of absolute liability of the operator. See Convention on
Third Party Liability in the Field of Nuclear Energy of 29th July 1960, as amended by the
Additional Protocol of 28th January 1964 and by the Protocol of 16th November 1982 (1960),
1519 UNTS 329 (Paris Convention), Article 9; Convention on Third Party Liability in the Fieldof Nuclear Energy of 29 July 1960, as amended by the Additional Protocol of 28 January
1964, by the Protocol of 16 November 1982, and by the Protocol of 12 February 2004, enteredinto force 1 Jan. 2022, unofficial consolidated text available at: NEA (2017), “Convention on
Third Party Liability in the Field of Nuclear Energy of 29 July 1960, as amended by the
Additional Protocol of 28 January 1964, by the Protocol of 16 November 1982 and by theProtocol of 12 February 2004”, NEA Doc. NEA/NLC/DOC(2017)5/FINAL (Revised Paris
Convention), Article 9; Convention on Supplementary Compensation for Nuclear Damage(1997), IAEA Doc. INFCIRC/567, 36 ILM 1473, entered into force 15 Apr. 2015 (CSC), Article 5a.
Insurance policies normally contain a “nuclear hazards clause”, which is a provision statingthat all damage resulting from any type of nuclear activity or radioactive releases is notcovered by the policy. See e.g. Kagan, J. (2023), “Nuclear Hazards Clause”, Investopedia,
www.investopedia.com/terms/n/nuclear-hazards-clause.asp (accessed 26 Apr. 2024).
See 1963 Vienna Convention, supra note 8, Article VII(1):The operator shall be required to maintain insurance or other financial security
covering his liability for nuclear damage in such amount, of such type and in suchterms as the Installation State shall specify. The Installation State shall ensure thepayment of claims for compensation for nuclear damage which have been
established against the operator by providing the necessary funds to the extent
that the yield of insurance or other financial security is inadequate to satisfy suchclaims, but not in excess of the limit, if any, established pursuant to Article V.
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2. Responsibility under international nuclear law
The primary responsibility under international nuclear law in general and nuclear liability
law specifically is, without exception, always placed on the authorised person responsible
for the operation of the nuclear installation, i.e. the licensed operator. 14 This entity has
primary responsibility for the safety and security of the nuclear installation as specified innational legislation, regulations and the licence (authorisation). It is also one of the reasons
why the nuclear liability conventions have adopted channelling of “absolute” (no-fault)
liability to the operator to the express exclusion of any other person, including suppliersor employees. A simple unforeseeable or unavoidable act (even an act of terrorism or
sabotage) will therefore not exonerate the operator or the installation state that has aresidual responsibility. Crucial in the situation of Ukraine is therefore the extent to which
the regulatory authority and staff of the ZNPP and the Chernobyl Plant continue to be able
to safely and securely regulate and operate the Ukrainian nuclear facilities without being
obstructed in any manner or placed under undue pressure within the ongoinginternational conflict. This will also determine the extent to which the 1963 Vienna
Convention (to which both Russia and Ukraine are contracting parties) is applicable inrespect of nuclear liability for any possible nuclear damage resulting from a radioactive
release, the exoneration of that liability if directly resulting from a war-like act and to what
extent the concepts of “operator” and “installation state” remain de facto applicable. In
addition, a differentiation is to be made between “war-like events” and an act of terrorism
or sabotage committed within the context of an international conflict, which complicatesmatters even further.

3. Concept of absolute liability and war-like act exoneration
As far as the 1963 Vienna Convention is concerned, war-like act exoneration was only
briefly discussed in its travaux préparatoires, and initially there was no full agreement onwhether or not it should exonerate the operator at all. 15 The reasoning was based on theconcept of absolute liability for ultra-hazardous activities adopted in international law, as
fully adopted under the 1972 Convention on International Liability for Damage Caused by
Space Objects. 16 So far, there has been only one incident that caused transboundary
damage on a foreign territory that was resolved under that convention. This was the
Cosmos 954 satellite of the Soviet Union that fell on Canadian territory, for which the Soviet
Union paid CAD 3 million as compensation “in full and final settlement of all mattersconnected with the disintegration of the Soviet satellite Cosmos 954” under the convention

14.
15.

16.

Nuclear insurers have recently introduced a new clause on armed conflict, which provides
that the insurance policy “does not cover loss or damage directly or indirectly occasioned
by, happening through or in consequence of war, invasion, acts of foreign enemies,
hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection”.
It was also indicated that reinsurance for both the ZNPP and Chernobyl Plant has beencancelled, and that all other Ukrainian nuclear power plants’ insurance now have the newclause. This would therefore mean that the Ukrainian state will be liable with public funds
in case of a nuclear incident, according to the 1963 Vienna Convention.
See 1963 Convention on Nuclear Safety (1994), IAEA Doc. INFCIRC/449, 1963 UNTS 293,
entered into force 24 Oct. 1996 (CNS).
For a full discussion, see Horbach, N.L.J.T., O.F. Brown, T. Vanden Borre (2002), “Terrorism
and Nuclear Damage Coverage”, Journal of Energy & Natural Resources Law, Vol. 20, No. 3, Taylor& Francis, Abingdon, UK, pp. 231-269. See also IAEA (1964), Civil Liability for Nuclear Damage –Official Records, IAEA Legal Series No. 2, IAEA Doc. STEI/PUB/54, IAEA, Vienna, p. 46.
Convention on International Liability for Damage Caused by Space Objects (1971),
961 UNTS 187, adopted by UN General Assembly Resolution 2777 (XXVI) (1971), entered into
force 1 Sept. 1972.

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ARTICLES(i.e. the expenses for the recovery of radioactive material under Operation Morning Light).17
The discussion on the liability exoneration for the operator in the case of war-like acts was
further based on the Convention on Liability of Operators of Nuclear Ships signed in
Brussels on 25 May 1962. 18 Article VIII of that convention states that “[n]o liability under
this Convention shall attach to an operator in respect to nuclear damage caused by anuclear incident directly due to an act of war, hostilities, civil war or insurrection”. 19
The second report (CN-12/2) of the Intergovernmental Committee on Civil Liability for
Nuclear Damage states that:
Some members of the drafting committee suggested that the text of Article VIII of
the Brussels Convention should be adopted, with the proviso that national law could
provide exonerations from liability in the case of grave natural disasters, although thefull Committee had not decided that there should be an automatic exoneration in cases of actsof war, hostilities, civil war or insurrection as under the Brussels Convention. 20
The absolute liability for operators was therefore “not to be subject to the classicalexonerations such as force majeure, acts of God or intervening of third persons, irrespectiveof whether or not they were reasonably foreseeable and avoidable.” 21 The raison d’être isthat only the operator and state are in a position to take precautions, whereas potential
victims could not. As provided in paragraph 48 of the Exposé des Motifs to the 1960 Paris
Convention to which the Intergovernmental Committee explicitly referred and which
served as the basis for negotiating the text of the Vienna Convention:
The only exonerations lie in the case of damage caused by a nuclear incident directly
due to certain disturbances of an international character such as acts of armed
conflict and hostilities, of a political nature such as civil war and insurrection, or
grave natural disasters of an exceptional character, which are catastrophic andcompletely unforeseeable, on the grounds that all such matters are the responsibility of
the nation as a whole. No other exonerations are permitted. The national legislation of
the operator liable may, however, provide that he is to be liable even in the case of agrave natural disaster of an exceptional character [Article 9]. 22
This was reiterated in the comments on the draft articles of the Vienna Convention,with the addition that “[i]t is provided, however, that a State may, by national law, evenfurther restrict the exonerations.” 23 This means that nothing prevents a country from

17.

18.
19.

20.
21.

22.
23.

12

See Article I of the Protocol between the Government of Canada and the Government of
the Union of Soviet Socialist Republics (1981), on the Disintegration of Cosmos 954 overCanadian Territory in 1978, available at: www.unoosa.org/oosa/en/ourwork/spacelaw/
nationalspacelaw/bi-multi-lateral-agreements/can_ussr_001.html (accessed 26 Apr. 2024).
Convention on the Liability of Operators of Nuclear Ships (1962) (not in force), reprinted in
57 American Journal of International Law, No. 1, Cambridge Univ. Press, New York, p. 268(Brussels Convention).
Note that the word “hostilities” replaced the original term “invasion” in an earlier version of
the 1963 Vienna Convention, Article III(3)(a). In reference to Article VIII of the Brussels
Convention of Operators of Nuclear Ships, some members of the drafting committee statedthat similar language should be incorporated in the Vienna Convention and because it was
the general understanding that, in case of war-like acts against nuclear ships, “hostilities”
would be a better concept than “invasion”. It was merely considered to be wider in the sensethat “invasion” suggests military troops/ships or aircraft on a foreign territory, whereas“hostilities” could take place with no actual physical presence in the foreign country.
IAEA (1964), supra note 15, p. 46, no. 24. (emphasis added).
IAEA (2020), The 1997 Vienna Convention on Civil Liability for Nuclear Damage and the 1997
Convention on Supplementary Compensation for Nuclear Damage – Explanatory Texts, IAEA
International Law Series, No. 3 (Rev. 2), IAEA Doc. STI/PUB/1906, IAEA, Vienna, p. 10(Explanatory Texts).
NEA (1982), “Exposé des Motifs”, revised text approved by the OECD Council on 16 Nov.
1982, OECD Doc. C/M(82)24(Final), p. 53 (emphasis added), available at: www.oecd-nea.org/
jcms/pl_79227 (accessed 26 Apr. 2024).
IAEA (1964), supra note 15, p. 77, nos. 56-57.
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making the operator liable even in case of war-like events, provided that compensation is
guaranteed as a last resort by the state itself. However, the Ukrainian law did not provide
for this. 24 The war-like exoneration was intended to cover only such exceptional
circumstances under which, as described by the UK delegation at the 12th meeting on the
Draft Convention on Minimum International Standards Regarding Civil Liability for
Nuclear Damage, “law and order might break down” such as in war, hostilities, civil war,
insurrection, revolutions and rebellion. 25 It was further clear that, within the context of theexonerations that were allowed, the manner in which it was possible to control, preventor protect against any such unforeseeable catastrophic events, including during
international conflict and war, was considered to be a determinative factor:
If war were considered a fair exception on the ground that the responsibility for it
fell on the nation as a whole, the operator could not be held more responsible incase of a grave natural disaster for it was humanly possible to prevent war but not toprevent an earthquake. The Convention must ensure all possible protection for the
public but should not impose on the operator an unreasonable or undefined burden which
would cripple the development of peaceful uses of atomic energy in countries such
as Japan. Insurance cover against natural disaster as against war would be
exorbitant if indeed it could be obtained at all. 26
It seems, therefore, that the liability exonerations were limited to those situations
where operators have absolutely no control, and the issue becomes a responsibility of the“nation as a whole”. 27 The measure of actual and de facto control of not only the operator,
but also the regulatory body and the state, therefore may be only determinative in whether
or not exoneration of the operator due to war-like events can be applied, should a nuclear
incident occur. 28 Furthermore, exonerating an operator from liability for nuclear damage,such as may be the case in grave natural disasters, could result in a situation where no one
is liable and victims would be without a means to recover damages. This was considered
to be undesirable in general. In this context, the situation of the war-exoneration wasviewed differently from grave natural disasters, for instance, according to one of therepresentatives, “[i]n the case of an armed conflict civil war etc. the combatants would be
liable provided they were liable in common law”. 29

24.
25.
26.
27.

28.

29.

See section 73 of the Law of Ukraine on the Use of Nuclear Energy and Radiation Safety,
reproduced in NEA (1995), “Ukraine Law on the Use of Nuclear Energy and Radiation
Safety”, Nuclear Law Bulletin, No. 56, Supplement, OECD Publishing, Paris, pp. 3-44.
IAEA (1964) supra note 15, p. 250, no. 12.
Ibid., pp. 249-250, nos. 6-7 (emphasis added).
For instance, Japan’s Act on Compensation for Nuclear Damage, No. 147 of 1961, as amended
by Act No. 19 of 17 April 2009, sec. 3, provides for an exoneration of the operator’s liability“where the damage is caused by a grave natural disaster of an exceptional character”. NEA(ed.) (2012), Japan’s Compensation System for Nuclear Damage, OECD Publishing, Paris, p. 62. This
exoneration was not invoked for the 2011 Fukushima Daiichi accident, which resulted froma massive earthquake and tsunami. According to the Diet’s deliberations during enactmentof the Act, such circumstances would only involve “situations that are completely beyond all
imagination”, “a super-act of God”, something like a meteorite fall. Nomura T., T. Hukugo
and C. Takenaka (2012), “Japan’s nuclear liability system”, in ibid., p. 18.
As an example, in the United States, nuclear power plants are not required as a conditionof construction permits to show effective protection against every conceivable form ofattack or sabotage. See Siegel v. Atomic Energy Commission, 400 F.2d 778 (DC Cir. 1968).
The case involved challenges to an order of the Commission authorising a public utility
company to construct two nuclear reactors for the generation of electricity in Southern
Florida, following opponents of the reactors citing the danger of an enemy attack following
the Cuban Missile Crisis. The court found that the US Congress did not expect aconstruction permit applicant to demonstrate how its plant would be invulnerable towhatever destructive forces a foreign enemy might be able to direct against it. Ibid., p. 784.
IAEA (1964), supra note 15, p. 226, no. 43.

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The fact that no one would be liable for nuclear damage to the installation itself, evenif caused intentionally, was also considered undesirable and resulted in the adoption ofanother exception to the channelling of liability principle to allow for liability of, and rightof recourse against, any individual (physical person) acting with intent (including anomission to act) to cause nuclear damage (e.g. a terrorist). 30 This was based on the proposal
by Sweden and Denmark resulting in Article IV(7)(a) of the Vienna Convention:
In respect of nuclear damage for which the operator by virtue of paragraph 3 ofArticle III is not liable under this Convention nothing in the Convention shall affectthe liability of any individual who has caused the damage by an act or omission
done with intent to cause damage. 31
This proposal, as adopted, was intended to deal with cases where the operator was
exempted from liability such as in case of war-like events:
The sponsors had particularly in mind cases where a serious nuclear incident might
have been produced by an act intended to cause damage. In the absence of such aprovision, insurrectionists, for example, who had intentionally caused nuclear
damage might be brought to court and then exonerated under the Convention. 32
From the travaux préparatoires, it can thus be discerned that the exoneration of liabilityof the operator applies only in exceptional situations in which a war-like act directly causes
nuclear damage, e.g. in situations that are completely beyond human control and thus will
become the responsibility of the nation as a whole. 33 This would include bombing or othermilitary attacks directed against nuclear power plants within international conflict thatare beyond the control of the operator and state. It would not include situations in whichde facto operational control of the nuclear power plant has been compromised throughforeign military occupation, but safe and secure operation is not otherwise jeopardised –unless, of course, the purpose of such occupation is not to prevent but to allow (by an act
or omission to act) for any intentional intervention resulting in a nuclear incident. The
latter, if perpetrated by non-state (or semi-state) actors, would rather be an act of terrorism
that, whether international or domestic, would not exonerate the operator from liability.
Should the operator be exonerated, then the “insurrectionists” or other war combatants
may be held liable under general laws, or the states under international law (see infra),while, as mentioned above, the 1963 Vienna Convention does not affect the liability of any
individual (terrorist or not) that acted with intent to cause nuclear damage and provides
the operator with a right of recourse against any such individual.

4. Need for factual determination of direct cause of damage
To be exonerated from its otherwise absolute liability in the event of off-site nuclear damage,the installation operator would need to show that the nuclear damage results from a nuclear
incident that was directly due to one of the war-like acts listed in the 1963 Vienna
Convention, Article IV(3)(a). This would require the court with jurisdiction over the nuclear
damage claims to make a factual determination, which may be difficult or not depending
upon the circumstances. For example, it was reported that, due to continued shelling, ZNNP

30.

31.
32.
33.

14

See 1963 Vienna Convention, supra note 8, Article IV(2) and X(b); Explanatory Texts, supranote 21, pp. 12-13.
Under Article X, a right of recourse is only granted to the operator in two cases: first,
if a right of recourse is expressly provided for by a contract in writing; second, where
the incident resulted from an act or omission done with intent to cause damage,against the ‘individual’ responsible. In this latter case, the right of recourse is limited
to a right against the physical person who acts or omits to act with intent to cause
damage, and there is no right of recourse against the employer of that person.
1963 Vienna Convention, supra note 8, Article IV(7)(a).
IAEA (1964), supra note 15, p. 343, no. 18 (statement by Mr Spleth, Denmark delegation).
See also ILC (2011), supra note 1, p. 112, Article 4 (“Where a treaty itself contains provisions
on its operation in situations of armed conflict, those provisions shall apply.”).
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lost its last remaining external power source. 34 If that action had been caused by Russian
military forces and had resulted in a nuclear incident that caused nuclear damage, it is likely
the Zaporizhzhia operator would have been able to invoke the war-like exoneration. On theother hand, the Russian forces purportedly did not interfere with the plant’s staff (e.g. byallowing the usual worker rotation) and, if there were a release causing off-site nuclear
damage, it probably would be more difficult for the operator to show that the nuclear damage
was directly due to a war-like act. In short, any exoneration of the operator based on the warlike act exception to the channelling principle would be fact-dependent.

5. Acts of terrorism and sabotage
From the travaux préparatoires of the 1963 Vienna Convention, it can be discerned that evenacts of intentional terrorism or sabotage were not considered to fall within the exonerationof the absolute liability of the operator. 35 This was confirmed in the Explanatory Text to
the 1997 Vienna Convention and confirmed by the IAEA’s International Expert Group on
Nuclear Liability (INLEX), which was established in September 2003. 36 Thus, the operator
remains absolutely liable under the channelling principle for such acts (which usually
involve non-state individuals). The operator has the obligation to have in place the nuclear
security measures shielding the nuclear installation against any such acts and to installeffective protective systems and measures to prevent possible escalation resulting in a
nuclear incident. Therefore, the Russian military in control of the nuclear installation
should refrain from any conduct that could compromise nuclear security and safety andprevent any possible situation that could result in nuclear damage and injury to innocent
civilians, whether domestic or abroad.
Finally, there could be a situation where nuclear damage is a result of a nuclear incident
jointly with another occurrence that causes an emission of ionising radiation not fallingwithin the context of a “nuclear incident” and thus not covered by the 1963 Vienna
Convention. The operator would still remain liable in such a situation, whether such an
incident involves acts of terrorism by Ukrainian or Russian individuals, 37 but the 1963 Vienna

34.

35.
36.
37.

IAEA, Press Release, “Ukraine’s ZNPP Must Be Urgently Protected, IAEA’s Grossi Says After
Plant Loses All External Power Due to Shelling”, IAEA Press Release No. 163/2022 (8 Oct. 2022).
See also Reuters (2023), “Russia says Ukraine 'playing with fire' with drone attack near
nuclear plant”, Reuters, www.reuters.com/world/europe/russia-says-ukrainian-droneslaunched-an-attack-near-zaporizhzhia-nuclear-power-2023-11-02.
See IAEA (1964), supra note 15, p. 46; Explanatory Texts, supra note 21, p. 13. See also
Horbach, N.L.J.T., O.F. Brown, and T. Vanden Borre (2002), “Terrorism and Nuclear Damage
Coverage”, supra note 15.
See Explanatory Texts, supra note 21, p. 46, referring to the confirmation in the fourth meeting(7–11 February 2005) of INLEX concluding that “the phrase ‘… armed conflict, hostilities, civil
war or insurrection’ … was not intended to include acts of terrorism, as an exoneration.”
For instance, at the beginning of March 2022, the Ukrainian Ministry of Defence claimed
that the Russian army attacked the experimental nuclear reactor in Kharkiv at the National
Research Centre of the Kharkiv Institute of Physics and Technology, whereas the Russian
Ministry of Defence claimed that “Ukrainian sabotage groups” planted a mine in the areaplanning to blow up the reactor in order to blame Russia for it. See e.g. TASS, Press Release,“Russia Notifies OPCW of Ukraine’s Plans To Stage Provocation at Kharkov’s Nuclear
Reactor” (9 Mar. 2022), https://tass.com/politics/1419419; News 18 (2022), “Russia Says
Ukraine Attacking Nuclear Reactor In Kharkiv, To Pin Blame On Russian Army Later”,
News 18, www.news18.com/news/world/russia-says-ukraine-attacking-nuclear-reactorin-kharkiv-pin-blame-on-russian-army-4844984.html. Had there been nuclear damage
from a release in either scenario, liability under the 1963 Vienna Convention likely would
be treated differently, depending upon a factual determination of the cause. If a release
were directly due to a Russian army attack, it likely would exonerate the reactor operator
under the 1963 Vienna convention as war-related. On the other hand, if the release werecaused by “Ukrainian sabotage groups”, the operator would remain liable.

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Convention explicitly states that it will not affect the liability or rights of recourse in respectof those responsible for the related occurrence. 38

6. Right of recourse
For intentional acts, the operator (state or insurer) will have a right of recourse forcompensation paid against the perpetrator of the act of terrorism or sabotage, since
Article IV(7)(a) of the 1963 Vienna Convention allows for claims against individuals(physical persons) that cause nuclear damage by their intentional acts, whether they areforeign or domestic. In this context, it is therefore also relevant to take into account theintention of any foreign occupation of the nuclear installation and whether or not suchoccupation actively ensures protective measures to prevent any possible escalation or actsof sabotage. Article X(b) of the 1963 Vienna Convention gives the operator a right ofrecourse if the nuclear incident results from “an act or omission done with intent to cause
damage, against the individual [physical person] who has acted or omitted to act with suchintent”. However, this provision may not have much practical effect, since it is unlikely thephysical person involved would have the financial resources to compensate for the nuclear
damage – i.e. they would likely be judgment proof. On the other hand, any person or entity
directly or indirectly engaged in or sponsoring or financing an act of terrorism resulting ina radioactive release, can be held criminally as well as financially liable under theInternational Convention for the Suppression of the Financing of Terrorism (1999) 39 andthe International Convention for the Suppression of Acts of Nuclear Terrorism (2005). 40 As
provided in Article 2(1) of the Terrorist Financing Convention:
Any person commits an offence within the meaning of this Convention if that
person by any means, directly or indirectly, unlawfully and wilfully, provides orcollects funds with the intention that they should be used or in the knowledge thatthey are to be used, in full or in part, in order to carry out [...] any other act intended
to cause death or serious bodily injury to a civilian, or to any other person not
taking an active part in the hostilities in a situation of armed conflict, when the
purpose of such act, by its nature or context, is to intimidate a population, or tocompel a government or an international organization to do or to abstain fromdoing any act. 41
As both Russia and Ukraine are parties to the Terrorist Financing Convention and the
Nuclear Terrorism Convention, both have an international obligation to actively identify
and prevent such acts defined within the conventions and ensure the identification,
detection and freezing or seizure of any funds used or allocated for the purpose ofcommitting any act of terrorism. In fact, Ukraine claimed that Russia had breached this

38.

39.
40.
41.

16

1963 Vienna Convention, supra note 8, Article IV(4), provides:
Whenever both nuclear damage and damage other than nuclear damage have beencaused by a nuclear incident or jointly by a nuclear incident and one or more otheroccurrences, such other damage shall, to the extent that it is not reasonably
separable from the nuclear damage, be deemed, for the purposes of this Convention,
to be nuclear damage caused by that nuclear incident. Where, however, damage iscaused jointly by a nuclear incident covered by this Convention and by an emissionof ionizing radiation not covered by it, nothing in this Convention shall limit orotherwise affect the liability, either as regards any person suffering nuclear damage
or by way of recourse or contribution, of any person who may be held liable inconnection with that emission of ionizing radiation.
International Convention for the Suppression of the Financing of Terrorism (1999),
2178 UNTS 229, entered into force 10 Apr. 2002 (Terrorist Financing Convention).
International Convention for the Suppression of Acts of Nuclear Terrorism (2005),
2445 UNTS 137, entered into force 7 July 2007 (Nuclear Terrorism Convention).
See also ibid., Articles 2 and 18.
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obligation in its case brought before the International Court of Justice in 2017. 42 In addition,
both states are obligated to establish criminal, civil or administrative liability, while
ensuring that such “criminal acts within the scope of this Convention are under nocircumstances justifiable by considerations of a political, philosophical, ideological, racial,ethnic, religious or other similar nature”. 43

7. Concept of “operator” and “Installation State”
The de facto control of the operator and the state may have some relevance in respect ofthe determination of the (liable) “operator” and (responsible) “Installation State” and towhom nuclear liability is to be channelled under the nuclear liability conventions, i.e. tothe extent that de facto control lies with a person other than the licensee and the nuclear
installation is operated under the “jurisdiction or authority” of a state. In casu, bothconcepts could be relevant and employed as an argument to determine the de facto liable
person. In the context of liability of transport of nuclear materials, for instance, the shiftof liability from the sending to the receiving operator, and vice versa, was also based on theconcept of “physical control”. In the absence of a written contract, liability remains withthe sending operator (responsible for safety and security of packaging) until the receiving
operator “takes charge” of the nuclear material and/or in case of material sent to noncontracting states, after the material is “unloaded” from the means of transport. 44 Bothrefer to a shift in “physical control”, relevant to determine the shift in liability, which isalso based upon the fact that from that moment on, the receiving operator will be in theposition to ensure safety and security of the material. This interpretation was clarified
during the negotiations of the 1963 Vienna Convention. 45 The 1963 Vienna Convention
defines “operator” in relation to nuclear installation as “the person designated orrecognized by the Installation State as the operator of that installation”. 46 As to thedefinition of “operator”, the travaux préparatoires of the Vienna Convention did not departfrom those of the 1960 Paris Convention (Article 1(a)(vi)) and the 1963 Brussels
Supplementary Convention (Article I(4)) 47 – i.e. the person with the authorisation (licence)
to operate a nuclear installation and responsible for nuclear safety and security should
thus be liable for any nuclear damage. The negotiators of the Vienna Convention notedthat in the absence of any official authorisation by the state, “de facto control” may be adeterminative factor:

42.

43.
44.
45.

46.
47.

On 16 January 2017, the government of Ukraine filed in the Registry of the Court anapplication instituting proceedings against Russia with regard to alleged violations of the
Terrorist Financing Convention. The proceedings are not finalised. See Application of theInternational Convention for the Suppression of the Financing of Terrorism and of theInternational Convention on the Elimination of All Forms of Racial Discrimination (Ukraine
v. Russian Federation), Provisional Measures, Order of 19 April 2017, ICJ Reports 2017, p. 104
and ibid., Preliminary Objections, Judgment, ICJ Reports 2019, p. 558, available at: www.icjcij.org/en/case/166 (accessed 26 Apr. 2024).
Terrorist Financing Convention, supra note 39, Article 6.
See generally Bukhari, K. (2022), “The international regulatory framework governing thesafe and secure transport of nuclear and radioactive materials”, in NEA, (ed.), Principles andPractice of International Nuclear Law, OECD Publishing, Paris, p. 333.
A Dutch proposal was to change the “taken charge”, as used in the 1960 Paris Convention, to“physical control”, i.e. “before physical control over the nuclear material has been assumed
by the operator of another nuclear installation in its territory”. This was not approved, but
the discussion clarified what the delegates understood under "take charge”. See proposal
CN-12/CW/I amendment 25 and related statement made by Mr Scheffer of the Netherlandsdelegation. IAEA (1964), supra note 15, pp. 197-198. See also ibid., pp. 214-220.
1963 Vienna Convention, supra note 8, Article I(c).
Convention of 31st January 1963 Supplementary to the Paris Convention of 29th July 1960,
as amended by the Additional Protocol of 28th January 1964 and by the Protocol of 16th
November 1982 (1963), 1041 UNTS 358 (Brussels Supplementary Convention).

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This definition identifies the person who is liable for nuclear damage. In most
instances a person will have been authorized to operate a nuclear installation. If,
however, no express authorization has been given, the law of the Installation State
will – by a special provision or by the application of general principles – identify the
person who will be considered the operator. This person may be the owner, thepossessor of the installation or the person who has de facto control over it. 48
Within this context, it is crucial to determine to what extent the regulatory authority
and the nuclear power plant’s staff continue to be able to safely and securely regulate andoperate the Ukrainian nuclear facilities, without being obstructed in any manner or placed
under “undue pressures” that would jeopardise the exercise of de facto control. 49
Another approach is taken with respect to the determination of the “Installation State”,
which Article I(1)(d) of the 1963 Vienna Convention defines, in relation to nuclear
installation, as “the Contracting Party within whose territory that installation is situatedor, if it is not situated within the territory of any State, the Contracting Party by which orunder the authority of which the nuclear installation is operated”. 50 As reflected in therecord of the development of the 1963 Vienna Convention,
The term “Installation State” is necessary to designate the State that has legislativecompetence with regard to nuclear damage. Reactors and other nuclear installations
may conceivably be operated outside the territory of any State – e.g. on the High Seasor in the Antarctic regions. It is therefore provided that any State which operates or
which has authorized such installations shall be considered the Installation State. 51
So, unless a state operates, or has authorised the operation of, a nuclear installation
not situated within its own territory or any other state, the designated Installation State
under the Vienna Convention remains to be in line with the interpretation of “operator”
and “Installation State”, despite the military occupation and de facto control of the nuclear
installation will provide an insufficient basis to shift liability away from the Ukrainian
operator and state under the 1963 Vienna Convention.

8. Liability and responsibility outside of the 1963 Vienna Convention
Under the state responsibility rules, both the Russian and Ukrainian states may be held
responsible and liable for injurious consequences and must ensure prompt and adequate
compensation under international law, should these countries be responsible throughtheir attributable conduct (both action and omission) for a radioactive release resulting
from nuclear material or a nuclear incident at a nuclear power plant. 52 The nuclear liability

48.
49.

50.
51.
52.

18

IAEA (1964), supra note 15, p. 70 (emphasis added).
IAEA Director General Rafael Mariano Grossi outlined seven indispensable pillars of
nuclear safety and security in a meeting on the Ukrainian situation, emphasising notably
Pillar 3, which states: “The operating staff must be able to fulfil their safety and security
duties and have the capacity to make decisions free of undue pressure”. IAEA, Press
Release, “Update 13 – IAEA Director General Statement on Situation in Ukraine”, IAEA Press
Release No. 22/2022 (6 Mar. 2022).
1963 Vienna Convention, supra note 8, Article I(1)(d).
IAEA (1964), supra note 15, p. 70, no. 30 (emphasis added).
See ILC (2007), “Responsibility of States for Internationally Wrongful Acts” (“Responsibilityof States”), in Yearbook of the International Law Commission 2001, Vol. II, Part Two, Doc.
A/CN.4/SER.A/2001/Add.1 (Part 2), UN, New York and Geneva, p. 31. See also ILC (2000),“Draft International Liability for Injurious Consequences Arising out of Acts not Prohibitedby International Law” (“Draft Articles”), in Yearbook of the International Law Commission 1997,
Vol. II, Part One, Doc. A/CN.4/SER.A/1997/Add.1 (Part 1), UN, New York and Geneva, p. 1.
This was later split into the “Draft principles on the allocation of loss in the case oftransboundary harm arising out of hazardous activities”, https://legal.un.org/ilc/texts/
instruments/english/draft_articles/9_10_2006.pdf (accessed 24 Apr. 2024) and draft articles
on “Prevention of Transboundary Harm from Hazardous Activities”, https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_7_2001.pdf (accessed 26 Apr. 2024).
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conventions explicitly state that they do not affect the general rules of public internationallaw, including rules on state responsibility. 53 In this context, the remarks of Mr ArangioRuiz, the representative of Italy taking part in the negotiations on the 1963 Vienna
Convention and the Special Rapporteur in respect of the draft articles on state
responsibility within the International Law Commission, may shed some light. The Italiandelegation put forward a proposal to explicitly deal with the problem of international
responsibility of states for nuclear damage, 54 leading to the inclusion of Article XVIII of the
1963 Vienna Convention, which states: “This Convention shall not be construed asaffecting the rights, if any, of a Contracting Party under the general rules of public
international law in respect of nuclear damage.” Mr Arangio-Ruiz explained that:
A State might be an operator, and as such would be liable under the Convention, it
was also liable as a public authority responsible for nuclear operations in the
Installation State and as such was liable for violations of the Convention when it
came into force. These obligations were actionable before the competent courts, or,if an international dispute arose concerning the application of the Convention, theywould be determined through negotiations, arbitration or any other means provided
for in the Convention. Nevertheless, those obligations did not cover all the rights andduties of States and their responsibility under the international law of torts, asdistinct from non-compliance with conventions, should also be mentioned.
The law of nations might be invoked in cases of omission or negligence by a State, forinstance where governmental controls over a nuclear installation were inadequate,or where a State tended to favour placing installations in frontier areas with a viewto limiting damage occurring in its own territory. In such cases, although the Statemight not be the operator and might not be violating the Convention, it might
nevertheless be liable under international law for damage caused to nationals of
another State. The Convention should not be interpreted so as to prevent a State
from acting through diplomatic channels or through an arbitral or judicial
authority to obtain compensation for damage caused by another State. 55
Finally, the “law of war”, or international humanitarian law, which applies togovernmental forces and non-state armed groups and aims to reduce suffering and save
lives in case of (international) armed conflicts, should also be taken into account. The
Geneva Conventions of 12 August 1949 (specifically, the 1977 Additional Protocol I) are the

53.

54.
55.

See 1963 Vienna Convention, supra note 8, Article XVIII. This article was somewhat
rephrased in Article 16 of the 1997 Vienna Convention; Article XV of the CSC, and Annex II
to the 1960 Paris Convention, the latter of which reads: “This Convention shall not beinterpreted as depriving a Contracting Party, on whose territory damage was caused by anuclear incident occurring on the territory of another Contracting Party, of any recourse
which might be available to it under international law.” Convention on Third Party Liability
in the Field of Nuclear Energy of 29th July 1960, as amended by the Additional Protocol of
28th January 1964 and by the Protocol of 16th November 1982 (1960), 1519 UNTS 329.
IAEA (1964), supra note 15, pp. 343-344 (Statement by Mr Arangio-Ruiz, Italian delegation).
Ibid. (emphasis added).

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core element of international humanitarian law ratified by 196 states. 56 Any grave breachesof those rules of war, which include the causation of a nuclear incident or radiologicalrelease involving nuclear material 57 resulting in widespread nuclear damage, will amountto war crimes that can be prosecuted before international tribunals, including each
responsible individual (occupiers of the plant) able to be held criminally liable under
universal jurisdiction (i.e. they can be sued in any jurisdiction). 58 As for any nuclear damage
caused, the Russian and the Ukrainian states can both be held responsible under the state
responsibility rules of the International Law Commission, if and to the extent aninternational tribunal determined that the conduct involved that violates an international
rule (e.g. not preventing the occurrence of transboundary nuclear damage) is attributable
to the state and provided there is no other circumstance that precludes the wrongfulness(e.g. self-defence, distress, state of emergency, provided it is not self-induced) but does notnecessarily relieve the state from the obligation to compensate for any material loss
caused. 59 States have a strict international obligation to prevent any activities under their

56.

57.

58.

59.

20

Articles 55 and 56 of the Additional Protocol (I) to the Geneva Conventions of 1949 andrelating to the protection of victims of international armed conflicts, which was ratified byboth Ukraine (25 Jan. 1990) and Russia (29 Sept. 1989), specifically address the prohibition in
warfare to cause “widespread, long-term and severe damage to the natural environment”,
which includes nuclear damage (Article 55), or to make “nuclear electrical generating
stations” subject to reprisals or an attack “if such attack may cause the release of dangerous
forces and consequent severe losses among the civilian population” (Article 56). The key
issue here appears to be, in conformity with the 1963 Vienna Convention, the actual
causation of nuclear damage by a nuclear incident directly resulting from a war-like event.
See Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and relating to theprotection of victims of international armed conflicts (Protocol I) (8 June 1977), 1125 UNTS 3,
entered in force 7 Dec. 1978. See also the commentary on Article 56 explaining that the
special protection granted by that provision to dams, dykes and nuclear electrical generating
stations includes also “other military objectives located at or in the vicinity of these works or
installations” but “does not refer to military forces assigned to guard or defend the works or
installation”. See Sandoz, Y., C. Swinarski and B. Zimmermann (eds.) (1987), Commentary on
the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), Int’lCommittee of the Red Cross (ICRC), Martinus Nijhoff Publishing, Geneva, p. 670. It isnoteworthy that on 23 October 2019, Russia also withdrew its earlier declaration to recognise“ipso facto and without special agreement, in relation to any other High Contracting Party
accepting the same obligation, the competence of the International Fact-Finding
Commission”. See ICRC (n.d.), “Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I)(1977): Russian Federation”, International Humanitarian Law Databases, https://ihldatabases.icrc.org/en/ihl-treaties/api-1977/state-parties/ru (accessed 26 Apr. 2024).
Nuclear material includes special fissionable material and source material of plutonium,
thorium and uranium (including depleted uranium), as defined in the Nuclear Safety andSecurity Glossary. IAEA (2022), IAEA Nuclear Safety and Security Glossary, 2022 (Interim)
Edition, IAEA, Vienna, pp. 137-139.
Similarly, should international humanitarian law not apply, then Articles 7 and 11 of theConvention on the Physical Protection of Nuclear Material and Nuclear Facilities, as amended
in 2005, provide for a state’s obligation regarding threats of sabotage and to make any act, or
attempt thereof, directed against a nuclear facility, or an act interfering with the operationof a nuclear facility, a punishable and extraditable offence. Convention on the PhysicalProtection of Nuclear Material and Nuclear Facilities (1980), INFCIRC/274/Rev.1, 1456 UNTS
125, entered into force 8 Feb. 1987; Amendment to the Convention on the Physical Protectionof Nuclear Material (2005), IAEA Doc. INFCIRC/274/Rev.1/Mod.1, entered into force 8 May 2016.
As an essential part of nuclear security regime, states are also to develop a Design Basis
Threat (DBT), that often include beyond DBT for threats from which the operator cannot
defend the nuclear facility. See IAEA (n.d.), “Design Basis Threat (DBT)”, IAEA, www.iaea.org/
topics/security-of-nuclear-and-other-radioactive-material/design-basis-threat.
See “Responsibility of States”, supra note 51, Articles 1-2, 27. Article 27 states that “The
invocation of a circumstance precluding wrongfulness is without prejudice to [...] (b) thequestion of compensation for any material loss caused by the act in question.”
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jurisdiction or control from causing transboundary damage and are required to ensure
prompt, adequate and effective compensation for such damage, should it occur. 60
9. Conclusions
In conclusion, if a nuclear incident were to occur, the existing operators of the ZNPP and theChernobyl Plant would be liable for any off-site nuclear damage under the 1963 Vienna
Convention, as implemented by Ukraine, unless they could meet the burden of showing thatsuch nuclear damage was directly due to a war-like act by the Russian military. If nuclear
damage is shown to have been directly due to a war-like act by the Russian military, it is theRussian state that may need to provide compensation for nuclear damage underinternational humanitarian law. Short of a war-like act (military attack) directed against thenuclear installation and directly resulting in a nuclear incident, the Ukrainian operator would
remain liable for any nuclear damage and would have to compensate all victims within andoutside Ukraine, including potential Russian victims under the 1963 Vienna Convention, in
accordance with the 1963 Vienna Convention as implemented in Ukrainian domestic law
and to the extent determined by the competent court. Should insurance policies fail to coversuch compensation, then the Ukrainian state would have a residual responsibility to cover
the compensation under the state guarantee provision of the 1963 Vienna Convention.
Whether or not there exists a right of recourse or liability outside of the 1963 Vienna
Convention depends on the conduct by the Russian military and the extent to which any
action causing nuclear damage can be successfully interpreted as “an act of sabotage or
terrorism”. Relevant considerations in this respect are the de facto control of the operation of
the nuclear installation and inherent intentions by the Russian military or any non-state
actors.
Should the control of the installation be used or intended to be used to cause nuclear
damage or a radioactive release, whether or not part of a military intervention orinternational conflict, any individual intentionally acting or omitting to act, whether Russian
or of any other nationality, would be subject to civil, financial and criminal liability underdomestic and international law. Conversely, the conduct (including an omission to act) of the
Ukrainian operator or state (including the regulatory authority) should be consistently
focused on actively preventing any possible situation that could result in a nuclear incident
causing (transboundary) nuclear damage, short of which even a right of recourse for anindividual's intentional act or omission may fail. Ergo, both the Russian and the Ukrainianstates, the Russian military occupants, the Ukrainian military and combatants, the Ukrainian
operator and regulatory authority, as relevant and appropriate, have the responsibility toemploy utmost effective efforts to prevent any situation that may result in a radioactive
release from the nuclear power plant and any other structure or building where nuclear
material is present on the site. This also means that the Russian military should refrain frompreventing the ZNPP and Chernobyl Plant’s staffs and the Ukrainian regulatory authority
from continuing to be able to safely and securely operate and regulate the Ukrainian nuclear
facilities, and to the extent possible, further facilitate all actions necessary to ensure nuclear
safety and security by not obstructing the ZNPP or Chernobyl Plant’s staffs or the regulatory
body in any manner or by placing them under undue pressure. The same obligations apply
to the Ukrainian military or any individual or group purporting to act on behalf thereof,
involved in the ongoing hostilities.

60.

“Draft articles on prevention of transboundary harm from hazardous activities” and“Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of
Hazardous Activities” of the ILC, supra note 51. For an in-depth historical analysis, see
Lefeber, R. (1996), Transboundary Environmental Interference and the Origin of State Liability,
Kluwer Law International, The Hague; Horbach, N.L.J.T. (1996), Liability versus responsibility
under international law: Defending strict state responsibility for transboundary damage (doctoral
thesis), Leiden University, Leiden, Netherlands.

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Finally, since the 1963 Vienna Convention and its travaux préparatoires do not provide
any room for nuance in the current (and perhaps future) situation where a nuclear
installation is occupied by foreign armed forces out of control of an operator but notrelieving its nuclear liability, it may be useful to revisit the abstract war-like provision in
the conventions in order to address such issues by appropriate recommendations.

22

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The modern nuclear liability regime’s concept of “environmental damage”:
How national courts may apply it and what remedies they may provide forsuch damage
by Sandra Knopp Pisi *Introduction
The protection of the environment has become an increasingly important issue in the eyesof the public in recent years and has been implemented in more and more legal
frameworks. The notion of environmental protection and sustainability will continue to beof great interest, including in international nuclear law and in nuclear liability law.
As a result of the Chernobyl nuclear accident, the world became more aware of thepotential extent of damage from nuclear accidents and, in particular, the fact that borders
do not stop the spread of radioactivity. In response, the international nuclear liability regimes
were amended to better protect victims. Among other changes, new heads of damage, theso-called “environmental damages” were introduced. This article aims to explore several
questions surrounding these heads of damage. What is environmental damage asenvisioned in the nuclear liability regimes? Is it something completely new? Which specificrequirements must be fulfilled in order to receive compensation? Who will be entitled toclaim environmental damage? Who will decide on the extent of damage and how will they
do so?
This article will also discuss how national courts can apply the concept of environmental
damage as defined in the modern nuclear liability regimes. We will see that national courts
have great discretion in assessing damage claims and deciding on the remedies that they
may provide for such damage. In this sense, they also have a great responsibility. Part I of
this article offers a brief overview of the international nuclear liability regimes, addressing
the question of why there is a special nuclear liability regime. It will further point out thebasic principles of international nuclear liability and give a brief examination of the three
nuclear liability regimes, including the amendments to the applicable conventions. Part II
addresses the notions of “environment” and “environmental damage” before covering in
more detail two heads of damage: (1) cost of measures for reinstatement of an impaired
environment, and (2) loss of income deriving from an economic interest in any use or
enjoyment of the environment. Finally, the article briefly addresses the head of damage of“costs of preventive measures” to show that it is, in a certain sense, related to environmental
damage.

*Sandra Knopp Pisi is a Nuclear Energy Legislation Specialist at the Swiss Federal Office ofEnergy. The views expressed in this article are the personal opinions of the author and,accordingly, she bears sole responsibility for the article’s contents.

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Part I: International nuclear liability or third-party liability, respectively – anoverview
1.

International nuclear liability

The principle of “casum sentit dominus” (or “the loss falls on the owner”) – from Roman law –holds that, in principle, everyone must bear the risk of any accidental loss or damage sufferedto themselves or their property. 1 Both the injured party and the general public would
probably consider it unfair if the injured party had to bear the damage caused by anotherparty. Accordingly, the legal system stipulates that the injuring party must compensate forthe damage. This is the function of tort law. 2 In order for a party (usually the injuring party)
to be liable for such damage, a legal basis is required. 3 This can be, for example, pursuant tocivil liability law or public environmental law. For instance, the “polluter-pays” principle,
which was derived from public environmental law, attributes damage from pollution to theperson that produced the pollution.4 Though nuclear liability is principally regulated by civil
liability law, 5 the new heads of environmental damage incorporate components of thepolluter-pays principle derived from environmental law (as we will see below). In this firstpart, we will have a brief overview of the special regime of nuclear liability and theimprovements brought about by the three modern nuclear liability regimes.

1.1

A special liability regime

The Exposé des Motifs of the Revised Paris Convention 6 gives an overview of the reasons forthe special regime:
The production and use of nuclear energy for peaceful purposes involve hazards ofa special character and potentially far-reaching consequences. Despite the highlevel of safety achieved in this field, the possibility remains that incidents capableof causing considerable damage can occur. The magnitude of that damage, the factthat an incident occurring in one country can cause significant damage in several
neighbouring countries, and the recognition that damage caused by ionisingradiation may not manifest itself until many years after the incident which caused

1.

2.
3.
4.
5.

6.

24

See Adler, D.O. (2011), “Das Verhältnis zwischen Verursacherprinzip und Haftpflicht im
Umweltrecht” [The relationship between the polluter-pays principle and liability inenvironmental law], Schriftenreihe zum Umweltrecht, Vol. 24, Schulthess Verlag, Zürich, p. 1,(with reference to Oftinger K. and E.W. Stark (1995), Schweizerisches Haftpflichtrecht, Band 1:
Allgemeiner Teil [Swiss Liability Law, Volume 1: General Part], Schulthess Juristische
Medien, Zürich, p. 9); and Roberto, V. (2022), Haftpflichtrecht [Tort Law], 3rd edition, Stämpfli
Verlag, Bern, p. 5.
See Oftinger K. and E.W. Stark., supra note 1, p. 12.
See ibid., p. 10.
See Adler, D.O., supra note 1, p. 2.
That nuclear liability is principally regulated by civil liability law can be seen in the nameof one of the Conventions, i.e. the Vienna Convention on Civil Liability for Nuclear Damageof 21 May 1963, as amended by the Protocol to Amend the 1963 Vienna Convention on Civil
Liability for Nuclear Damage (1997), IAEA Doc. INFCIRC/566, 2241 UNTS 302, entered into
force 4 Oct. 2003 (Revised Vienna Convention).
Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960, as
amended by the Additional Protocol of 28 January 1964, by the Protocol of 16 November
1982, and by the Protocol of 12 February 2004, entered into force 1 Jan. 2022, unofficial
consolidated text available at: NEA (2017), “Convention on Third Party Liability in the Fieldof Nuclear Energy of 29 July 1960, as amended by the Additional Protocol of 28 January
1964, by the Protocol of 16 November 1982 and by the Protocol of 12 February 2004”, NEA
Doc. NEA/NLC/DOC(2017)5/FINAL (Revised Paris Convention).
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ARTICLESit, have led many States to conclude that general tort law is not well suited to deal
with the particular risks involved in nuclear energy production and use. 7
There are different interests to consider, namely the protection of “the public from theexceptional risk posed by the production of nuclear energy, the economic benefits of adeveloped nuclear power industry, and the need to protect investors and suppliers from
ruinous liability claims”. 8 Those concerns have been integrated in three international
nuclear liability regimes:•

the Paris-Brussels regime (under the auspices of the Organisation for Economic
Co-operation and Development [OECD]), with the Revised Paris Convention 9 andthe Revised Brussels Supplementary Convention; 10•

the Vienna regime (under the auspices of the IAEA) with the Revised Vienna
Convention; 11 and•the Convention on Supplementary Compensation for Nuclear Damage (CSC) (under
the auspices of the IAEA). 12

The Paris and the Vienna Conventions are connected by the 1988 Joint Protocol relating
to the application of the Vienna Convention and the Paris Convention. 13 This Protocol has
a bridging function for the adhering parties. The territorial scope of the operator’s liability
is mutually extended, and the Protocol eliminates “conflicts arising from the simultaneous
applications of both Conventions to a nuclear incident”. 14 For the purposes of this article,
the Revised Paris Convention, Revised Vienna Convention and the CSC will be referred tocollectively as “the Conventions”. 15

1.2.

The basic principles of the Conventions

As mentioned above, nuclear liability law is governed by specific principles: 16

•

7.
8.
9.
10.

11.
12.
13.
14.
15.

16.

Strict liability: If a nuclear incident results in damage, the operator is liable because
they operate a nuclear installation or transport nuclear material, which are
dangerous activities. The person claiming compensation does not have to prove
fault or negligence, which would be a challenge given the complexity of a nuclear

NEA (2020), “Exposé des Motifs of the Paris Convention as amended by the Protocols of
1964, 1982 and 2004”, adopted by the Contracting Parties to the Paris Convention on 18 Nov.
2016, NEA Doc. NEA/NLC/DOC(2020)1/FINAL (Exposé des Motifs), p. 2.
Schwartz, J. (2022), “Liability and compensation for third party damage resulting from anuclear incident”, in NEA (ed.), Principles and Practice of International Nuclear Law, OECD
Publishing, Paris, p. 409.
Revised Paris Convention, supra note 6.
Convention of 31 January 1963 Supplementary to the Paris Convention of 29 July 1960, as
amended by the Additional Protocol of 28 January 1964, by the Protocol of 16 November 1982
and by the Protocol of 12 February 2004, entered into force 1 Jan. 2022, unofficial
consolidated text available at: NEA (2017), “Convention of 31 January 1963 Supplementary
to the Paris Convention of 29 July 1960, as amended by the Additional Protocol of 28 January
1964, by the Protocol of 16 November 1982 and by the Protocol of 12 February 2004”, NEA
Doc. NEA/NLC/DOC(2017)6/FINAL (Revised Brussels Supplementary Convention).
Revised Vienna Convention, supra note 5.
Convention on Supplementary Compensation for Nuclear Damage (1997), IAEA Doc.
INFCIRC/567, 36 ILM 1473, entered into force 15 Apr. 2015 (CSC).
Joint Protocol Relating to the Application of the Vienna Convention and the Paris
Convention (1988), IAEA Doc. INFCIRC/402, 1672 UNTS 293, entered into force 27 Apr. 1992
(Joint Protocol).
Ibid., Preamble.
The 1963 version of the Vienna Convention [Vienna Convention on Civil Liability for
Nuclear Damage (1963), IAEA Doc. INFCIRC/500, entered into force 12 Nov. 1977 (Vienna
Convention)] is still in force but does not include the new heads of damage. Therefore, itwill not be examined in this article.
For detailed information see: Schwartz, J., supra note 8, p. 409.

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power plant. A few exceptions to this principle exist. For instance, the operator is
not liable for nuclear damage caused by a nuclear incident directly resulting froman act of armed conflict, hostilities, civil war or insurrection. 17 Further, the operator
has no right of recourse except in two cases. First, against an individual acting or
failing to act with the intent to cause damage, if the nuclear damage caused by anuclear incident results from their act or failure to act. 18 Second, if a right ofrecourse is provided expressly by contract. 19

17.
18.
19.
20.
21.
22.
23.
24.
25.
26.

27.

26

•

Exclusive liability (legal channelling): It is solely the operator of a nuclear facility whobears liability for damage to third parties resulting from a nuclear incident, and notits suppliers. 20 This makes it easier for victims to assert claims for compensation, as
it avoids “difficult and lengthy questions of complicated legal cross-actions toestablish in individual cases who is legally liable”. 21 Furthermore, this fact “obviates
the necessity for all those who might be associated with the construction oroperation of a nuclear installation other than the operator itself to also take out
insurance, and thus allows a concentration of the insurance capacity available.” 22•

Limited liability in amount: “Under ordinary tort law rules there is no limit on theamount of compensation payable for damage caused by an accident; the person
liable for the damage will have to pay the full amount of any judgment or
settlement. However, in many countries wishing to develop, expand or maintaintheir nuclear industry, relieving operators from the burden of ruinous liability
claims is practically a necessity and their national laws therefore impose a limit
upon the amount for which an operator may be held liable for third party
damage.” 23 All three Conventions stipulate the amount of the operator’s liability asa minimum amount. 24 This gives the contracting parties the option of providing for
limited liability or unlimited liability (the latter is the case, for example, inGermany, Japan and Switzerland). 25•

Compulsory coverage of liability (financial security): 26 The Conventions providethat the liable operator must cover its liability by insurance or other financial
security. 27 This prerequisite of compulsory coverage is to ensure that the operator’s
liability will be covered should a nuclear incident occur. This results in a

Revised Paris Convention, supra note 6, Article 9; Revised Vienna Convention, supra note 5,
Article IV(3); and CSC, supra note 12, Annex, Article 3(5)(a).
Revised Paris Convention, supra note 6, Article 6(f)(i-ii); Revised Vienna Convention, supranote 5, Article X(a); and CSC, supra note 12, Annex, Article 10(a).
Ibid.
IAEA (2020), The 1997 Vienna Convention on Civil Liability for Nuclear Damage and the1997 Convention on Supplementary Compensation for Nuclear Damage – Explanatory Texts, IAEA
International Law Series No. 3 (Rev. 2) (Explanatory Texts), IAEA, Vienna, p. 1.
Ibid.
Ibid.
Schwartz, J., supra note 8, p. 415.
Revised Paris Convention, supra note 6, Article 7(a); Revised Vienna Convention, supranote 5, Article V(1); CSC, supra note 12, Annex, Article 4(1).
Schwartz, J., supra note 8, p. 415.
For a comprehensive overview on cover and the insurance industry see Quéré, A. (2014),“Challenges facing the insurance industry since the modernisation of the international
nuclear third party liability regimes”, Nuclear Law Bulletin, No. 94, OECD Publishing, Paris,
pp. 77-104.
Revised Paris Convention, supra note 6, Article 10(a); Revised Vienna Convention, supranote 5, Article VII(1)(a); and CSC, supra note 12, Annex, Article 5(1)(a).
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congruence between liability and cover, i.e. corresponding financial resources in
the amount of the liability are effectively available to compensate victims. 28

1.3.

•

Limited liability in time: As in many areas of law, the Conventions also provide atime limit, or prescription period, that potential claimants have for raising claims.
The Revised Paris Convention 29 and the Revised Vienna Convention 30 stipulate aperiod of 30 years for claims regarding loss of life or personal injury and 10 years forother nuclear damage, during which a claim for compensation might be brought
against the operator. The CSC provides for a prescription period of ten years for allheads of damage. 31 However, all three conventions stipulate that national law may
also provide for longer prescription periods. 32 The Conventions provide for the
possibility of a discovery rule for the contracting states. This discovery rule requiresthat a claim must be filed within a determined period, not less than three years after
the victim acquires knowledge of both the damage and the liability of the operator.33•

Exclusive jurisdiction: “Exclusive jurisdiction is granted to the courts of one State,
to the exclusion of the courts in other States.” 34 This competent court has
jurisdiction over claims for compensation following a nuclear incident, regardlessof the place of residence or nationality of the injured victims. 35•

Equal treatment: Applying the relevant Convention or the applicable national law
shall be done without any discrimination based upon nationality, domicile orresidence. 36

An overview of the amendments to the Paris and Vienna Conventions

The triggering event for the amendments of the 1963 Vienna Convention 37 and the1960 Paris Convention (as amended in 1964 and 1982), 38 as with the elaboration of the CSC,
was the 1986 nuclear accident at the Chernobyl nuclear power plant in the former Union

28.

29.
30.
31.
32.

33.
34.
35.
36.
37.
38.

Since unlimited cover will obviously not be available, there can be no congruence between
liability and cover in the case of unlimited liability. In such a case, the Conventions
stipulate that the contracting party must establish a corresponding level of cover, whichmust at least correspond to the minimum cover in accordance with the conventions (see:Revised Paris Convention, supra note 6, Article 10 (b); Revised Vienna Convention, supranote 5, Article VII(1)(a); and CSC, supra note 12, Annex, Article 5(1)(a)). Swiss nuclear
liability law, for example, provides for unlimited liability of an operator. The financial
security to cover this unlimited liability has been set by the legislator to EUR 1.2 billion(plus ten per cent of the total amount for interests and judicially awarded costs).
Revised Paris Convention, supra note 6, Article 8(a).
Revised Vienna Convention. supra note 5, Article VI(1)(a).
CSC, supra note 12, Annex, Article 9(1).
A longer prescription period is subject to the condition that the national law provides, thatthe liability of the operator is covered by insurance or other financial security including State
funds for this longer period, see: Revised Paris Convention, supra note 6, Article 8(b); Revised
Vienna Convention, supra note 5, Article VI(1)(b); CSC, supra note 12, Annex, Article 9(1).
Revised Paris Convention, supra note 6, Article 8(d); Revised Vienna Convention, supranote 5, Article VI(3); CSC, supra note 12, Annex, Article 9(3).
Explanatory Texts, supra note 20, p. 1.
Revised Paris Convention, supra note 6, Article 13(g); Revised Vienna Convention, supranote 5, Article XI. A. The CSC has no comparable provision.
Revised Paris Convention, supra note 6, Article 14(a) and (c); Revised Vienna Convention,
supra note 5, Article XIII(1); and CSC, supra note 12, Annex, Article 3(2).
Vienna Convention, supra note 15.
Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960, as
amended by the Additional Protocol of 28 January 1964 and by the Protocol of 16 November
1982, 1519 UNTS 329 (this version of the Paris Convention was in force until the amending
Protocol of 12 February 2004 entered into force on 1 January 2022).

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ARTICLESof Soviet Socialist Republics. 39 The extensive damage incurred was a wake-up call for theworld and made clear that victims of nuclear accidents have to be better protected.
Many actions were taken in various areas of international nuclear law after the
Chernobyl accident. Regarding international nuclear liability, a first reaction to this
accident was the implementation of the aforementioned Joint Protocol to achieve a mutual
extension of the operators’ liability for the Paris Convention and Vienna Convention
parties in order to offer compensation to more victims. 40
The revisions to the Vienna and Paris Conventions, and the adoption of the CSC,
brought better protection for victims of nuclear incidents. Indeed, liability and coverageamounts were increased, additional funds were made available, new categories ofcompensable damage were introduced 41 (economic loss, environmental damage andpreventive measures), and geographical scope and prescription periods were extended.
Seeking broader adherence to the liability regimes by attracting new contracting parties
was a goal and viewed as a means to achieve a more global nuclear liability regime. 42

1.4.

The new heads of damage in the Conventions

The heads of damage pursuant to the three regimes are the following: 43

39.

40.
41.

42.

43.

28

•

loss of life or personal injury;•

loss of or damage to property;•

economic loss arising from loss or damage referred to in the previous two heads ofdamage;•costs of measures of reinstatement of impaired environment;•

loss of income deriving from an economic interest in any use or enjoyment of theenvironment (for the Revised Paris Convention, such economic interest shall bedirect);•costs of preventive measures, and further loss or damage caused by suchmeasures; and•any other economic loss, other than that which was caused by the impairment of
the environment (only for the Revised Vienna Convention and the CSC).

See generally Burns, S. (2022), “The Impact of the Major Nuclear Power Plant Accidents on
the International Legal Framework for Nuclear Power”, in NEA (ed.), Principles and Practiceof Nuclear International Nuclear Law, OECD Publishing, Paris, pp. 93-96; Dussart-Desart, R.
(2006), “The Reform of the Paris Convention on Third Party Liability in the Field of Nuclear
Energy and of the Brussels Supplementary Convention, An Overview of the Main Featuresof the Modernisation of the Two Conventions”, in IAEA and NEA, International Nuclear Law
in the Post-Chernobyl Period, OECD Publishing, Paris, pp. 216-218.
At the time of writing, 12 (out of 16) Paris Convention parties have adhered to the Joint
Protocol, whereas only 22 of the 44 Vienna Convention or Revised Vienna Convention
states have adhered, with most of the latter ones being states outside of Europe.
Even under the existing category of property damage, the national court determines
according to its national law what is covered by this term. It was therefore already possiblethat environmental damage would be compensated, See Emmerechts, S. (2008),“Environmental Law and Nuclear Law: A Growing Symbiosis”, Nuclear Law Bulletin, No. 82,
OECD Publishing, Paris, p. 91.
Burns, S., supra note 36, pp. 103-104. See also IAEA (2011), “IAEA Action Plan on Nuclear
Safety”, available at: www.iaea.org/topics/nuclear-safety-action-plan (accessed 26 Apr.
2024), p. 5; Schwartz J. (2006), “International Nuclear Third Party Liability Law: The Response to
Chernobyl”, in NEA (ed.), International Nuclear Law in the Post-Chernobyl Period, OECD Publishing,Paris, p. 41-42.
Revised Paris Convention, supra note 6, Article 1(a)(vii)(1-6); Revised Vienna Convention,
supra note 5, Article I(1)(k); and CSC, supra note 12, Article I(f).
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The definitions of “nuclear damage” are functionally identical in all three Conventions.
Although the Revised Paris Convention does not explicitly include damage for “any othereconomic loss”, as is included in the Revised Vienna Convention and the CSC, this has nomaterial significance. “The Paris Convention States were simply not convinced that thishead of damage was not already covered by other heads of damage included in thedefinition.” 44 The Exposé des Motifs of the Revised Paris Convention also notes that “anydifferences between them are of a drafting nature only”. 45
The new heads of damage have a limitation, however, as they only have to becompensated to “the extent determined by the law of the competent court”. 46 The“classical” heads of personal injury or property damage do not include this limitation. The
Conventions give, in this case, an important role to the applicable national law. The
competent court has wide discretion, especially since many descriptions in the new headsof damage require interpretation. This issue is discussed in greater detail below.

1.5.

A few thoughts on the existing nuclear liability system

Without going into detail, a few critical questions and thoughts on the existing nuclear
liability system are listed here.



1.5.1.

Are there sufficient financial resources to cover damage?

After a major accident a primary question will inevitably be: Are there sufficient financial
resources to cover the whole scope of damage incurred? The following statement in the
Explanatory Texts to the Revised Vienna Convention and the CSC brings this question to thefore:
From the beginning of the negotiations on the revision of the Vienna Convention,
there was “general agreement” that the definition used in the Convention was“ambiguous and inadequate” and that a “more appropriate definition” should be
developed. On the other hand, it was clear to all delegations that a wider definition of
nuclear damage could only have practical effect if sufficient financial resources weremade available on the basis of the operator’s liability or on some other basis. The issue
was, therefore, closely linked to that of the increase of the amount of compensation,[…]. Moreover, it was feared that the inclusion of almost all possible types of damage
in the new definition might seriously jeopardize compensation of damage for loss oflife or personal injury. […] [T]he Protocol tries to deal with this problem by giving
priority to claims for loss of life or personal injury in cases where the damage to becompensated exceeds the amount of money available for compensation.47
Dealing with the Fukushima Daiichi Nuclear Power Plant accident, TEPCO has so far
spent JPY 11 265 billion (about EUR 68.3 billion) on compensation payments. 48 With thissum in mind, it quickly becomes clear that the new higher compensation amounts under
the Conventions will never be enough, not even under today’s highest compensation
amount of a total of EUR 1.5 billion under the Paris-Brussels regime. It can be assumed thatthe state will ultimately bear the costs in the event of a major nuclear accident.
It would be beneficial if states endeavoured to increase liability limits and cover and/or
provided further financial resources, while always hoping that there will never be a nuclear
accident again and that the issues discussed in this article will never have to be discussed
in regard to a future nuclear incident.

44.
45.
46.
47.
48.

NEA (2004), Final Act of the Conference on the Revision of the Paris Convention and of the Brussels
Supplementary Convention, Explanatory Report, OECD Publishing, Paris, p. 6.
Exposé des Motifs, supra note 7, p. 20, para. 18.
Revised Paris Convention, supra note 6, Article 1(a)(vii); Revised Vienna Convention, supranote 5, Article I(1)(k); and CSC, supra note 12, Article I(1)(f).
Explanatory Texts, supra note 20, p. 34.
From: Records of Applications and Payouts for compensation of Nuclear Damage, as of
26 April 2024; www.tepco.co.jp/en/hd/responsibility/revitalization/pdf/comp_ result-e.pdf.

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1.5.2.

Is limited liability justified?

Germany, Japan and Switzerland have, for example, implemented unlimited liability. 49 The
question arises whether limited liability is justified. As we have seen, in the case of a major
nuclear accident, liability and cover will not suffice to compensate all damage incurred. In theend, it will potentially be the installation state of the operator liable that will need to jump in
as a sort of insurer of last resort. The question remains whether this result is justified.



1.5.3.

Are the Conventions an improvement for victims?

As mentioned, the Conventions provide for higher liability and financial security amounts,
and a wider geographical scope. A disadvantage could be that, with the additional heads ofdamage and the wider geographical scope of the Conventions, the financial resources
available will be even more strained, and thus likely insufficient.



1.5.4.

What will insurance cover?

The environmental and related heads of damage discussed in this article do not fall under
the classic concept of damage in the civil liability law sense. While the issue of liability forenvironmental damage has become increasingly important in recent decades (see Part II,
below) and some countries do have civil liability mechanisms for environmental damage,50
the environmental and related heads of damage discussed in this article do not fall under
the concept of damage in the classic civil liability law sense. As we will see in this article, theterms describing these heads of damage in the Conventions are vague and requireinterpretation. Therefore, it is difficult to estimate how a court will assess such damages, and
it is correspondingly difficult for insurance companies to clearly identify the risks to be able
to provide cover. Nevertheless, since the amendment of the Paris Convention in 2004,
environmental damage has been covered in an increasing number of contracting states. 51

Part II: Environmental damage
The Conventions have the objective of ensuring adequate compensation not only fordamage caused to persons and property, but also for damage caused to the environment. 52
However, the term “environment” is not defined in the Conventions. Therefore, theconcepts of environment and environmental damage in general will be discussed in thispart before further analysing how the new heads of damage address environmental
damage, namely the head for costs of “measures of reinstatement of impaired
environment”. The new heads of damage for “loss of income deriving from an economic
interest in any use or enjoyment of the environment” and for “preventive measures” will
also be introduced, even if they do not remediate actual environmental damages.

1. Environment and environmental damage
To understand the environment that surrounds us, we need to understand how it works.
Ecology gives us the answers. “Ecology is the study of the relationships between livingorganisms, including humans, and their physical environment”. 53 Furthermore, “ecologicaldamage can be defined as a significant and sustained intervention in the environmental

49.
50.

51.
52.
53.

30

Schwartz, J., supra note 8, p. 415.
See for example: § 16 of the German Environmental Liability Act (Umwelthaftungsgesetz)of 10 December 1990 [BGBl. I p. 2634, which was last amended by Article 6 of the Act of
17 July 2017 [BGBl. I p. 2421)] or Article 292.1 (1) of the Canadian Environmental Protection
Act, 1999 (S.C. 1999, c. 33).
NEA (2024), CPPC – Availability of Financial Security to Cover Heads of Damage as Required Under
the Paris Convention (non-official) (updated January 2024, OECD Publishing, Paris.
Exposé des Motifs, supra note 7, p. 2.
The Ecological Society of America (ESA) (n.d.), “What is Ecology”, ESA, www.esa.org/about/what-does-ecology-have-to-do-with-me (accessed 26 Apr. 2024).
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media – soil, water, air – in the flora and fauna including micro-organisms, in the climate,and in the network of interactions between them”. 54 It is important to see thatenvironmental damage does not occur to a single plant or animal but to “the ability of theenvironment to regenerate and sustain such animal or plant life for a certain period oftime in the future. Due to the dynamics of ecological balances, it is extremely difficult todetermine the extent of current damage for the future.” 55 Moreover, it is difficult to predict
how nature will respond effectively to radioactivity. Does nature have the power toregenerate itself or do significant radiological effects persist in the long run? 56

1.1.

Interpreting the terms “environment” and “environmental damage”

As discussed, it is the competent national court that will decide nuclear damage claims,
and to do so the court will need to apply the relevant law, namely the applicable nuclear
liability convention and its national legislation. If the applicable law does not provide aclear definition of the concept of environment, it is the responsibility of the court tointerpret the concept. Towards this end, the court will likely not only consider its national
legislation but also international instruments and international case law, if only because
it must interpret terms from an international convention. The court will do so by applying
the general principles of interpretation, looking for the meaning of a term, considering
wording and context, history and purpose, among other potential factors. 57



1.1.1.

The term “environment” in national law in the context of Swiss law

This article will not broadly analyse existing national legislation but will highlight a few
interesting points based on Swiss environmental law.
Environmental law gives the standards that serve to preserve or improve the natural
foundations of life. In doing so, environmental law primarily makes use ofadministrative instruments (such as codes of conduct, emission limitations,
incentive taxes, licensing requirements, etc.) that are intended to avoid
environmental pollution. 58
This statement was focused on Swiss environmental law, but it is generally applicable.
Even if environmental laws do not explain or prescribe how a damaged environment is tobe reinstated after a (nuclear) incident, it can nevertheless serve as starting point.
Swiss environmental law has a dualistic concept. If the environment is affected,
damage can trigger liability claims under private law on the one hand, and on the other
hand authorities become involved where general interests are affected and will pass on
the costs pursuant to the “polluter-pays” principle. 59 The Swiss Federal Act on theProtection of the Environment 60 states in Article 1 that the “Act is intended to protect

54.
55.
56.
57.
58.

59.
60.

Furrer A. and M. Müller-Chen (2018), Obligationenrecht Allgemeiner Teil [Code of Obligations,
General Part], Schulthess Juristische Medien Verlag, Zürich, p. 430 (translated from originalGerman text).
Ibid.
Ibid.
See Vienna Convention on the Law of Treaties (1969), 1155 UNTS 332, entered into force
27 Jan. 1980, (VCLT), Article 31 ff.
Gähwiler, F. (2016), “Kommentar zu den Schweizer Haftpflichtbestimmungen”[“Commentary on the Swiss Liability Provisions”], in Fischer, W, and Luterbacher, T. (eds.),
Haftpflichtkommentar, Kommentar zu den schweizerischen Haftpflichtbestimmungen [Liability
Commentary, Commentary on the Swiss Liability Provisions], Dike Verlag, Zurich, p. 2038
(translated from original German). The quoted statement is made in connection with theliability provisions of the Federal Fisheries Act.
Mettler, C., N. Moser, and P. Starke (2016), “Umwelthaftung und Versicherung von
Umweltrisiken” [Environmental liability and insurance of environmental risks], in HAVE
Haftung und Versicherung, No.4, Schulthess Juristische Medien Verlag, Zürich, p. 401.
Federal Act on the Protection of the Environment (Swiss Environmental Protection Act)
(1983), Classified Compilation 814.01, unofficial English translation available at:www.fedlex.admin.ch/eli/cc/1984/1122_1122_1122/en (accessed 26 Apr. 2024).

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people, animals and plants, their biological communities and habitats against harmful
effects or nuisances and to preserve the natural foundations of life sustainably, inparticular biological diversity and fertility of the soil. Early preventive measures must be
taken in order to limit effects which could become harmful of a nuisance.” 61 With a viewto a nuclear incident, the following (non-exhaustive) elements can be extracted:•“Soil pollution is the physical, chemical and biological modification of the natural
condition of the soil”, meaning “the unsealed top layer of land where plants may
grow”. 62•

The “[d]isposal of waste includes its recovery or deposit in a landfill as well as thepreliminary stages of collection, transport, storage and treatment. ‘Treatment’ isany physical, chemical or biological modification of the waste.” 63•

The Environmental Protection Act further states that the “cost of measures taken by
the authorities to prevent imminent pollution of the environment, to establish its
existence, or to remedy it are charged to the person responsible for the pollution”.64
This shows that, after an accident, the costs for measures for the remediation of theenvironment must include prior measurements and clarifications to be able todetermine the damage and the appropriate measures to be taken.

Although the Swiss Environmental Protection Act has a liability disposition,65 pureenvironmental damage is not covered by this provision. It can only be covered if a law
expressly prescribes it (which is the case for the Revised Paris Convention, whose provisions
are directly applicable in Switzerland). 66 Pure environment damage in this sense isunderstood to mean the deterioration of common goods such as air, water, plants or animals.
At the time, the legislator assumed that a general liability law would be introduced in which
this issue would be dealt with. 67 Unfortunately, this legislative project was not pursued
further. Nevertheless, the Swiss Federal Supreme Court has allowed compensation forenvironmental damage in two cases. In a case from 1964, the Federal Supreme Court
qualified costs incurred by the public authorities (cantons of Fribourg and Vaud), for theremoval of dead fish and the release of new fish into the public waterway, as damages. 68 The
public waterway in that case had been polluted due to accidental chemical discharge. 69 In
addition, the Federal Supreme Court has qualified compensable tree damage, finding that“in the event of the destruction of a tree, the costs incurred for the removal of the damaged
tree, for the planting of a replacement tree, for any additional maintenance measuresrequired and for the restoration of the surrounding area are to be compensated.” 70
There is not much information regarding measures to be taken to redress environmental
damage or the question of what remediation a Swiss court would award; however, costs formeasures in the area of environmental damage have been granted under current law andwill be helpful in interpreting the new environmental damages pursuant to the Conventions.

61.
62.
63.
64.
65.
66.
67.

68.
69.
70.

32

Ibid., Article 1.
Ibid., Article 7, para. 4bis.
Ibid., Article 7, para. 6bis.
Ibid., Article 59.
Ibid., Articles 59a-59d.
Mettler C., Moser, N. and Starke P., supra note 59, p. 404.
Botschaft zu einer Änderung des Bundesgesetzes über den Umweltschutz (USG) vom
7. Juni 1993 [Federal Council's dispatch on the amendment of the Federal Act on theProtection of the Environment], published in German: Bundesblatt 1993 II, p. 1546-1547,
available at: www.fedlex.admin.ch/eli/fga/1993/2_1445_1337_1213/de.
Entscheidung des schweizerischen Bundesgerichts [Decision of the Federal Supreme
Court] Dec. 15 1964, published in: [BGE] 90 II 417.
Ibid.
BGE, Jan. 19 2001, BGE 127 III 73 (Switz.), p. 77
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1.1.2.
The term “environment” in international law as related tonuclear law

As mentioned at the beginning of this article, protection of the environment andsustainability have become increasingly important in recent years and are frequently
included in international legal frameworks and considered in cases before international
tribunals. However, in the nuclear-specific conventions, “environment” is not well-defined.
A look at how other international instruments and international tribunals have defined theterm can help inform how a court may interpret the term in the context of the Conventions.
Of particular interest to this discussion are two cases in which the International Court ofJustice (ICJ) has made authoritative statements on the environment and related obligationsof states. 71 In its 1996 advisory opinion on the Legality of the Threat or Use of Nuclear
Weapons, the ICJ recognised that “the environment is not an abstraction but represents theliving space, the quality of life and the very health of human beings, including generations
unborn.” 72 Further, the ICJ stated that the “general obligation of States to ensure that activities
within their jurisdiction and control respect the environment of other States or of areas
beyond national control is now part of the corpus of international law relating to theenvironment.” 73 In a 1997 case, Gabčikovo-Nagymaros Project, the ICJ considered that “in thefield of environmental protection, vigilance and prevention are required on account of theoften irreversible character of damage to the environment and of the limitations inherent in
the very mechanism of reparation of this type of damage.” 74
As to the interplay between environmental protection and the international nuclear
law frameworks, ensuring the safety of operating nuclear power plants and the transportof nuclear material are key prerequisites for protecting the environment. A number of legal
instruments related to nuclear safety were adopted after the Chernobyl accident under the
auspices of the IAEA. For example, reference can be made to the 1994 Convention on
Nuclear Safety, in which the preamble states the importance of “ensuring that the use of
nuclear energy is safe, well-regulated and environmentally sound” and the objective
provided in Article 1(ii) is to “protect individuals, society and the environment fromharmful effects of ionizing radiation”. 75 Another safety instrument is the Joint Convention
on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste
Management. 76 In response to the Fukushima Daiichi Nuclear Power Plant accident, thenon-binding 2015 Vienna Declaration on Nuclear Safety was adopted to underscore theprinciples in the CNS, with an aim to “prevent accidents with radiological consequences
and mitigate such consequences should they occur”. 77
Another important matter for safety, and thus, ultimately, environmental protection, isthe dissemination of information. The faster and more transparently information isprovided after a nuclear accident, the greater the chances that damage – including
environmental damage – can be avoided or at least to some extent be reduced. For thisreason, the Convention on Early Notification of a Nuclear Accident was negotiated

71.
72.
73.
74.
75.
76.
77.

For a comprehensive overview see: Nick, K.S. and P. Bowden (2022) “Nuclear activities andenvironmental protection: The international legal framework”, in NEA (ed.) Principles andPractice, OECD Publishing, Paris, pp. 211-276.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ
Reports 1996, p. 241.
Ibid., p. 242.
Gabčikovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ
Reports 1997, p. 78.
Convention on Nuclear Safety (1994), IAEA Doc. INFCIRC/449, 1963 UNTS 293, entered into
force 24 Oct. 1996 (CNS), Preamble.
Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive
Waste Management (1997), IAEA Doc. INFCIRC/546, 2153 UNTS 357, entered into force
18 June 2001 (Joint Convention).
IAEA (2015), “Vienna Declaration on Nuclear Safety: On principles for the implementationof the objective of the Convention on Nuclear Safety to prevent accidents and mitigate
radiological consequences”, IAEA Doc. INFCIRC/872, pp. 2-3.

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immediately after the Chernobyl accident happened and entered into force on 27 October
1986. 78 At the time of writing, 133 states have adopted this convention. 79 The Convention
on Assistance in the Case of a Nuclear Accident or Radiological Emergency, with 128 parties
at the time of writing, was also negotiated and adopted in 1986 and serves acomplementary purpose. 80 Assistance and support from other states may also help a state
coping with a nuclear incident prevent or mitigate damage.
In addition, two conventions and a protocol on environmental matters – all threeelaborated under the auspices of the United Nations (UN) Economic Commission for
Europe (UNECE) – cover nuclear activities. These are the 1991 Convention on Environmental
Impact Assessment in a Transboundary Context, 81 the 1998 Convention on Access toInformation, Public Participation in Decision-Making and Access to Justice in Environmental
Matters 82 and the 2003 Protocol on Strategic Environmental Assessment to the Convention
on Environmental Impact Assessment in a Transboundary Context. 83 Their aim is to informand consult with citizens and other states at an early stage. This serves the purpose of
considering the environment in the decision-making process and therefore also serves toprevent or mitigate environmental damage. 84
All of these instruments mention the environment or have the purpose of protecting
it. They may therefore be considered by a competent court as illustrative of the importantrole of the environment in international law. However, these instruments provide noconcrete indication as to what measures are to be taken to restore an environment afteran accident. Therefore, the instruments are not of great significance to resolving the issueof defining the term “environment” for the competent courts in the liability context.



1.1.3.
The term “environment” or “environmental damage” in otherinternational instruments

A selection of international instruments relating to the environment are listed below. 85
Such instruments may be helpful to a national court in interpreting the concept of theenvironment or environmental damage.

•

78.
79.
80.

81.
82.
83.
84.
85.
86.

34

Stockholm Declaration: 86 This Declaration on the Human Environment was
adopted at the UN Conference on the Human Environment, held on 16 June 1972
in Stockholm and comprises 26 Principles. It was the “first world conference toConvention on Early Notification of a Nuclear Accident (1986), IAEA Doc. INFCIRC/335,
1439 UNTS 276, entered into force 27 Oct. 1986 (Early Notification Convention).
IAEA (2023), “Latest Status: Convention on Early Notification of a Nuclear Accident”,
www.iaea.org/sites/default/files/23/11/not_status.pdf (accessed 26 Apr. 2024).
Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency(1986), IAEA Doc. INFCIRC/336, 1457 UNTS 134, entered into force 26 Feb. 1987 (Assistance
Convention). As of 29 February 2024, there are 128 parties to the convention. IAEA (2023),“Latest Status: Convention on Assistance in the Case of a Nuclear Accident or Radiological
Emergency”, www.iaea.org/sites/default/files/22/06/cacnare_status.pdf (accessed 26 Apr.
2024).
Convention on Environmental Impact Assessment in a Transboundary Context (1991),
1989 UNTS 310, entered into force 10 Sept. 1997 (Espoo Convention).
Convention on Access to Information, Public Participation in Decision-Making and Accessto Justice in Environmental Matters (1998), 2161 UNTS 450, entered into force 30 Oct. 2001
(Aarhus Convention).
Protocol on Strategic Environmental Assessment to the Convention on Environmental
Impact Assessment in a Transboundary Context (2003), 2685 UNTS 140, entered into force
11 July 2010 (SEA Protocol).
Espoo Convention, supra note 81, Preamble; Aarhus Convention, supra note 82, Preamble.
There are a large number of conventions and protocols in the environmental sector. An
overview can be found on the ECOLEX website: www.ecolex.org/result/?type=treaty(accessed 26 Apr. 2024).
UN (1973), “Stockholm Declaration on the Human Environment”, in Report of the United
Nations Conference on the Human Environment, UN Doc.A/CONF.48/14, p. 3.
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make environment a major issue”. 87 With regard to the term environment, theStockholm Declaration states that the natural resources of the earth to besafeguarded include “air, water, land, flora and fauna and especially representative
samples of natural ecosystems” (Principle 2), and that there is a responsibility tosafeguard “the heritage of wildlife and its habitat” (Principle 4). 88

87.
88.
89.
90.
91.
92.
93.
94.
95.
96.
97.
98.

99.

•

Rio Declaration: 89 The Rio Declaration on Environment and Development was
adopted at the UN Conference on Environment and Development, held 1992 in Riode Janeiro and includes 27 principles. The declaration does not contain a descriptionof the term “environment”. However, it introduces the precautionary principle(Principle 15) and the polluter-pays principle 90 (Principle 16). The precautionary
principle is not defined in the Rio Declaration or other instruments. It generally
consists of the following elements: (1) the need for (environmental or health)protection, (2) the presence of a threat or risk of serious damage, (3) theunderstanding that a lack of scientific certainty should not be used to avoid taking
action to prevent that damage, and (4) the need to provide evidence of safety(“reverse burden of proof”). 91 The precautionary principle pursuant to the IAEA is the“concept of preventing foreseeable harm”. 92 It serves the fundamental safety
principle, which is probably the most important principle in nuclear law, and should
ensure the protection of public health, safety, security and the environment. 93•

Convention on Biological Diversity: 94 This convention was opened for signature atthe 1992 Rio UN Conference on Environment and Development. Its objective is “theconservation of biological diversity, the sustainable use of its components, and thefair and equitable sharing of benefits arising from the use of genetic resources”.95
Biological diversity is described as “the variability among living organisms from all
sources including, inter alia, terrestrial, marine and other aquatic ecosystems andthe ecological complexes of which they are part; this includes diversity within
species, between species and of ecosystems”. 96 Ecosystem means “a dynamic
complex of plant, animal and micro-organism communities and their non-living
environment interacting as a functional unit”. 97•

International Convention on Liability and Compensation for Damage inConnection with the Carriage of Hazardous and Noxious Substances by Sea: 98 The
2010 HNS Convention contains a description of environmental damage that issimilar to that in the Conventions. 99

UN (n.d.), “United Nations Conference on the Human Environment, 5-16 June 1972,
Stockholm”, www.un.org/en/conferences/environment/stockholm1972 (accessed 26 Apr.
2024).
UN (1973), supra note 86.
UN (1993), “Rio Declaration on Environment and Development”, in Report of the United
Nations Conference on Environment and Development, UN Doc. A/CONF.151/26 (Vol. I), adopted
June 14, 1992.
The polluter-pays principle is described in Part I.1 above.
OECD (2023), Understanding and Applying the Precautionary Principle in the Energy Transition,
OECD Publishing, Paris, p. 21.
Stoiber, C. et al. (2003) Handbook on Nuclear Law, IAEA, Vienna, p. 6.
Ibid., p. 6
Convention on Biological Diversity (1992), 1760 UNTS 79, entered into force 29 Dec. 1993.
Ibid., Article 1.
Ibid., Article 2.
Ibid.
Consolidated text of the International Convention on Liability and Compensation for
Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea,
1996, and the Protocol of 2010 to the Convention (2010 HNS Convention), available at:www.hnsconvention.org/wp-content/uploads/2019/05/2010-HNS-Convention-English.pdf(accessed 26 Apr. 2024)
Ibid, Article 1(6).

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Protocol on Civil Liability and Compensation for Damage caused by theTransboundary Effects of Industrial Accidents on Transboundary Waters: 100 This
Protocol was adopted and signed on 21 May 2003 in Kyiv and is open for ratification
by state parties to one or both of the 1992 Convention on the Protection and Use of
Transboundary Watercourses and International Lakes and the 1992 Convention on
the Transboundary Effects of Industrial Accidents. The Protocol has not yet enteredinto force. Nevertheless, this protocol is of interest, as it also covers environmental
damage and describes it in a similar way to the Conventions. 101 Also interesting isthe definition for “measures of reinstatement”; pursuant to the Protocol it means“any reasonable measures aiming to reinstate or restore damaged or destroyedcomponents of transboundary waters to the conditions that would have existed
had the industrial accident not occurred, or, where this is not possible, tointroduce, where appropriate, the equivalent of these components into thetransboundary waters. Domestic law may indicate who will be entitled to take suchmeasures”. 102•

European Union (EU) Environmental Liability Directive: 103 The EU Environmental
Liability Directive of 2004 entered into force in the same year the 2004 Protocol to
the Paris Convention was adopted and after the adoption of the Revised Vienna
Convention and the CSC, both in 1997. The Directive, however, does not apply tonuclear damage, which falls instead within the scope of the Conventions.104
Nevertheless, the EU Environmental Liability Directive may be of great interest
regarding the notion of environmental damage and its approach to related
measures. It is quite likely that when the EU Environmental Liability Directive wasnegotiated, it was known that the Revised Vienna Convention and the CSC also
covered environmental damage and that the negotiations for the amendment of
the Paris Convention went in the same direction. 105 It can further be assumed thatthe negotiating parties of the 2004 Protocol to the Paris Convention also had to beaware of the Directive, for the sole reason that the majority of the contracting
parties to the Paris Convention are EU member states. As EU member states, theparties must implement this Directive. 106 The respective provisions become
national law and will be considered by competent national courts when deciding
on nuclear liability claims. It is striking that the terminology used for the newenvironmental damage provisions corresponds to that used in the Directive.
Therefore, a closer look at this Directive is required.

100. UNECE (2003), Protocol on Civil Liability and Compensation for Damage Caused by theTransboundary Effects of Industrial Accidents on Transboundary Waters to the 1992
Convention on the Protection and Use of Transboundary Watercourses and International
Lakes and to the 1992 Convention on the Transboundary Effects of Industrial Accidents,
ECE/MP.WAT/11-ECE/CP.TEIA/9, UNECE, Geneva.
101. Ibid., Article 2(2)(d).
102. Ibid., Article 2(2)(g).
103. Council Directive 2004/35/CE of 21 April 2004 on environmental liability regarding theprevention and remedying of environmental damage, Official Journal of the European Union(OJ) L 143, pp. 56-75 (EU Environmental Liability Directive).
104. Ibid., p. 61, Article 4.
105. Dussart-Desart R., (2005), “The reform of the Paris Convention on Third Party Liability in
the Field of Nuclear Energy and of the Brussels Supplementary Convention, An overview
of the main features of the modernization of the two Conventions”, Nuclear Law Bulletin,
No. 75, OECD Publishing, Paris, pp. 11, 15-16.
106. EU Environmental Liability Directive, supra note 103, p. 65, Article 19; Commission Notice
Guidelines providing a common understanding of the term “environmental damage” asdefined in Article 2 of Council Directive 2004/35/EC of 7 April 2021 on environmental
liability with regard to the prevention and remedying of environmental damage, OJ C 118,
p. 1, para. 1.

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1.1.4.
EU Environmental Liability Directive – Measures regarding
impaired environment

A large number of the signatory states to the Paris Convention and some signatory statesto the Vienna Convention are EU member states and must therefore transpose thisdirective into national law. The EU Environmental Liability Directive aims to prevent andremedy environmental damage, as expressed in the title. The following is an overview ofcertain points that seem to be relevant to the term “environmental damage” in the modern
nuclear liability Conventions. Certain points in the Directive will be addressed directly inregard to the corresponding elements of environmental damage.
As previously mentioned, the Directive is based on the polluter-pays principle and“aims at preventing and remedying environmental damage”. 107 It states that “not all formsof environmental damage can be remedied by means of the liability mechanism”. 108 Even
if the Directive does not apply to nuclear damage, this statement may be of interest to
those interpreting the new environmental damage head in the modern nuclear liability
conventions. The principle provided in the Directive that the competent authority may
make prioritisations where it cannot ensure that all necessary remedial measures forenvironmental damage are taken at the same time is also important. 109
The Directive defines environmental damage and splits it into three categories:(1) damage to protected species and natural habitats, (2) damage to water and (3) damage
to land. 110 Furthermore, it states that damage means a “measurable adverse change in anatural resource or measurable impairment of a natural resource service which may occur
directly or indirectly”. 111 Article 2(3) of the Directive is interesting for the purpose ofenvironmental damage, as it defines what “protected species and natural habitats” mean.
To this end, Article 2(1) refers to two specific directives and annexes and states that “anyhabitat or species, not listed in those Annexes which the Member State designates forequivalent purpose as those laid down in these two Directives” are also considered asprotected species and natural habitat. 112
Even if the EU Environmental Liability Directive is not applicable to non-EU countries,
it may nevertheless be consulted by a competent national court when the new head ofenvironmental damage, pursuant to the Conventions, must be interpreted. Of course, this
only applies if national law does not have its own definition of environmental damage.

1.2

The notion of remediation

The notion of remediation is sometimes defined as “[t]he restoration of polluted land,
water, or air to its former state, or as nearly so as is practical.” 113 As Dr Norbert Pelzer
explains: “This definition describes a scope which is limited to environmental restoration.
It mainly deals with the restoration of goods which are in nobody’s property ownership but

107.
108.
109.
110.
111.
112.

EU Environmental Liability Directive, supra note 103, pp. 56-57, Preamble.
Ibid., p. 57, Preamble.
Ibid.
Ibid., p. 59, Article 2(1).
Ibid., p. 59, Article 2(2).
The two directives referenced are: (1) Council Directive 2009/147/EC of 30 November 2009
on the conservation of wild birds, OJ L 20 (26 Jan. 2010), pp. 7-25 (Birds Directive), and (2) theCouncil Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and ofwild fauna and flora, OJ L 206 (22 July 1992), pp. 7-50. The Birds Directive is one of the oldest
instruments concerning the environment under EU legislation and one of its cornerstones.
European Commission (n.d.), “The Birds Directive”, https://environment.ec.europa.eu/
topics/nature-and-biodiversity/birds-directive_en (accessed 26 Apr. 2024). As noted, theBirds Directive was amended in 2009 and became the Directive of the European Parliamentand of the Council on the conservation of wild birds.
113. Pelzer, N. (2016), “Nuclear Accidents: Models for Reparation”, in Black-Branch, J.L. and
D. Fleck (eds.), Nuclear Non-Proliferation in International Law, Volume III, Legal Aspects of the Useof Nuclear Energy for Peaceful Purposes, TMC Asser Press, The Hague, p. 360 (citing Garner,
B.A. (ed.) (2004), Black’s Law Dictionary, 9th ed., Thomson Reuters, Saint Paul, MN, p. 1407).
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ARTICLESare common goods.” 114 The NEA defines remediation as “the process of reducing radiation
exposure from contamination through remedial actions to remove the contamination itself(decontamination) or to affect the exposure pathways”. 115 This definition seems a bit
narrow here, as it is only about decontamination and not about environmental restoration.
In this article the notion of “compensation” is used for the civil law approach and the term“remediation” for the public law approach.

2. New head of damage for “costs of measures of reinstatement of impaired
environment”
The head of damage for costs of measures of reinstatement of impaired environment is a
new head of damage under the Conventions. So far, the heads of damage were limited tothe traditional categories of loss of life or personal injury or loss of or damage to property.116
Therefore – based on Swiss legislation – we will have a brief look at civil liability law tobetter understand the difference in this new head of damage and its significance.
A prerequisite for liability for damage is an interference with the physical integrity of anatural person or with the property of a natural or a legal person. 117 Rudimentarily, andwithout going into detail about civil liability law, it can be said for the Swiss system thatthe consequence of such an interference is a reduction in the claimants’ assets, and thisdifference between the value of their assets before and after the interference is the damage
to be compensated (in Switzerland called the difference method). 118 A limitation in
potential damages is that the damage claimed cannot exceed the value of the damage
incurred. 119 If you are personally injured, you may, for example, have healthcare costs you
must pay (and your health insurance doesn’t reimburse you), or you may not be able towork and may therefore get a diminution in your salary. If your property is damaged, its
worth may be reduced, you may have to replace it or incur costs for decontamination. If
there is insurance that pays for such risks, the damage will become correspondingly
smaller. This difference in the value of a person’s assets before and after the interference
are to be compensated. Furthermore, in many legal systems it is incumbent on a person
claiming compensation to mitigate or avoid their losses. 120
In contrast, the new head of damage of costs of measures of reinstatement of an
impaired environment deviates from this traditional civil law approach. As we will see, theclaimant need not be necessarily the owner of the land or other property affected byenvironmental damage. As the value of the environment is exceedingly difficult todetermine, 121 remediation is based on the costs of measures of reinstatement.
There are two circumstances that must be distinguished where measures are taken or
are to be taken concerning elements of the environment. The first circumstance concerns
damage to elements of the environment that cannot be owned, meaning parts of theenvironment that cannot be the subject of property rights, or, in other words, that are notowned by anyone (referred to as res nullius in private Roman law). This is, for example, thecase with wild animals, such as birds and fish. This view is supported by the relevant
articles in the Conventions expressly stating that the costs of these measures must not be

114. Ibid.
115. NEA (2022), Building a Framework for Post-Nuclear Accident Recovery Preparedness, OECD
Publishing, Paris, p. 53.
116. Exposé des Motifs, supra note 7, p. 20, para. 54; Dussart-Desart R. (2005), supra note 105, p. 13.
The fact that nuclear liability under the Conventions is based on civil liability law is madeclear by the title of the Vienna Convention, which reads the “Vienna Convention on Civil
Liability for Nuclear Damage”.
117. See Roberto, V., supra note 1, p. 10.
118. Ibid. p. 231.
119. See, for Switzerland, BGE, 13.6.2008, BGE 134 III 489, p. 491, that states, that a prohibitionof enrichment applies in liability law. This means that the injured party should not receive
more from the compensation payment than they would have had without the claim.
120. Exposé des Motifs, supra note 7, p. 25, No. 62(a); Explanatory Texts, supra note 20, p. 37.
121. Explanatory Texts, supra note 20, p. 38.

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included in the head of damage of loss of or damage to property. 122 This can only meanthat either a private or legal person has ownership of the damaged “environment” andpotential damage can be claimed pursuant to the yet existing heads of property damage(loss of or damage to property) or economic loss deriving from this head of damage 123, or,that the “environment” is meant to be the flora, fauna or biota that no one can own andthat are so-called common goods. 124
The second circumstance concerns damage to elements of the environment owned bya person. This will most often be the case. But, deviating from the civil liability law
approach, measures are taken and paid for not by the owner or on his behalf but by anotherparty. This circumstance will concern, first and foremost, land in private or public
ownership and measures taken for its decontamination, for example by state authorities.
Here, we are dealing with measures that concerned owners could, theoretically, takethemselves and assert as property damage, claiming the corresponding compensation. 125

2.1.

Costs of measures of reinstatement of impaired environment

This head of damage is formulated practically identically in the three Conventions. 126 The
small differences are not significant. The description of this head of damage is rather long,and several conditions must be fulfilled. As an example, the relevant text of the Revised
Paris Convention provides that:“Nuclear damage” means,
1.

Loss of life or personal injury;

2.

Loss of or damage to property;

and each of the following to the extent determined by the law of the competentcourt,…
4. the costs of measures of reinstatement of impaired environment, unless such
impairment is insignificant, if such measures are actually taken or to be taken, andinsofar as not included in sub-paragraph 2 above;…
in the case of sub-paragraphs 1 to 5 above, to the extent that the loss or damage
arises out of or results from ionising radiation emitted by any source of radiation
inside a nuclear installation, or emitted from nuclear fuel or radioactive products
or waste in, or of nuclear substances coming from, originating in, or sent to, anuclear installation, whether so arising from the radioactive properties of suchmatter, or from a combination of radioactive properties with toxic, explosive orother hazardous properties of such matter.

122. Revised Paris Convention, supra note 6, Article 1(a)(vii)(4); Revised Vienna Convention,
supra note 5, Article I(1)(k)(iv); and CSC, supra note 12, Article I(f)(iv).
123. Exposé des Motifs, supra note 7, p. 23, para. 58, regarding the head of damage “economicloss”.
124. Theoretically, land can also fall under this situation. However, it is rather rare that there
are no ownership rights to a piece of land. See Dussart-Desart, R. (2005), supra note 105,
p. 14.
125. For a different and narrower opinion, see Pelzer, N. (2010) “Deliberations on Compensation
and Remediation of Nuclear Damage to the Environment”, Nuclear Law Bulletin, No. 86,
OECD Publishing, Paris, pp. 49-57.
126. The only differences in the wording of the Revised Paris Convention, compared to the
Revised Vienna Convention and the CSC, are the terms “nuclear substances” versus“nuclear material” and “legislation of the State” versus “law of the State”.
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Furthermore, the notions of “measures of reinstatement” and “reasonable measures” areparaphrased in Article 1(a) of the Revised Paris Convention: 127viii) “Measures of reinstatement” means any reasonable measures which havebeen approved by the competent authorities of the State where the measures weretaken, and which aim to reinstate or restore damaged or destroyed components ofthe environment, or to introduce, where reasonable, the equivalent of thesecomponents into the environment. The legislation of the State where the nuclear
damage is suffered shall determine who is entitled to take such measures.
…
x) “Reasonable measures” means measures which are found under the law of thecompetent court to be appropriate and proportionate, having regard to all thecircumstances, for example:1.

the nature and extent of the nuclear damage incurred or, in the case of
preventive measures, the nature and extent of the risk of such damage;2.

the extent to which, at the time they are taken, such measures are likely tobe effective; and3.

relevant scientific and technical expertise.

There are a larger number of prerequisites for this head of damage, and they are noteasy to grasp. The following is an attempt to briefly summarise the required prerequisites
and is only to give an idea of how many terms used in this head of damage are subject tointerpretation by the competent court. Subsequently, we will elaborate on the meaning ofthese elements:•

measures;•that are reasonable;•that have been approved by the competent authority;•

for the reinstatement of environment;•of an environment that is impaired;•the measures must aim to reinstate or restore damaged or destroyed components ofthe environment or introduce the equivalent of these components into theenvironment – where reasonable;•

this impairment must not be insignificant;•the measures are actually taken or are to be taken;•

the claimant is entitled to take such measures;•

these measures generated costs;•

these costs are not included in the head of damage “loss of or damage to property”;•

the damage must arise out of or result from “ionising radiation”; and•to the extent determined by the law of the competent court.

All these conditions must be fulfilled. If this is the case, it can be assumed that there is
nuclear damage, and the court may award a remediation.

127. See also Revised Vienna Convention, supra note 5, Article I(1)(m) and (o); and CSC, supranote 12, Article I(g) and (l).

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2.1.1.

Measures

A first step is to look at possible measures that may be taken to reinstate an impaired
environment. Whether a court will award remediation for such measures depends on theconditions that must be met. As discussed, there are two different circumstances underwhich damage may arise from an impaired environment. The first concerns environmentthat cannot be owned, like fauna, flora and biota. The second circumstance concerns
environment subject to private or public ownership. Measures envisaged in both contexts
are measures taken with the aim to reinstate the environment, in other words to return it
to its original state if possible or at least to the greatest degree possible. The possibility of
taking no measures, if it is to be assumed that the environment will recover by itself, isalso important to consider by the national court.
In both circumstances, such measures will include, as an early step, the collecting of
measurable data to assess the impact on the environment. A prerequisite for deciding
whether and which measures must be taken is the knowledge of the exact state of theenvironment and the deviation in the sense of deterioration from the previously existing
condition. Today, countries regularly collect data on the environment to provide decision
makers and the public with reliable and timely information on the environment. 128 This
environmental data should therefore be available to enable such a comparison to be made.
Of course, it is important that after a nuclear accident data be collected on an ongoing basis
to keep an eye on developments and, if necessary, take further measures or adapt existingmeasures. 129
Regarding the first circumstance, measures may include specific protection rules sothat birds, plants or microorganisms can recover on their own, if this seems possible. These
measures may, for instance, be supported with a ban on hunting, capturing or gathering.
The reintroduction of animals into the impaired environment may be envisaged, forexample, in the case of fish. Further, plants can be reseeded or grown elsewhere andreplanted in the impaired environment. These can be of the same variety or varieties of
species more suitable to the environment. Decontaminating land is surely of great help forthe environment, too. In general, it can be stated that such measures would be included
within “any action, or combination of actions, including mitigating or interim measures torestore, rehabilitate or replace damaged natural resources and/or impaired services, or toprovide an equivalent alternative to those resources or services”. 130
Measures relating to the environment under the second circumstance will especiallyconsist of decontamination measures. The accident at the Fukushima Daiichi Nuclear Power
Plant and its consequences can provide an overview of the process. Soil decontamination
was a major issue in the Fukushima Daiichi accident (as it was after the Chernobyl
accident). 131 More than 9 000 km2 of land was decontaminated by the Japanese authorities.132
The feedback on decontamination processes following the Fukushima nuclear
accident is unprecedented (...) because it is the first time that such a major cleanup effort has been made following a nuclear accident. The Fukushima accident

128. Pursuant to Article 2, para. 3(a) of the Aarhus Convention, supra note 82, the 47 parties to theConvention have to provide information on the “state of elements of the environment, suchas air and atmosphere, water, soil, land, landscape and natural sites, biological diversity andits components, including genetically modified organisms, and the interaction among theseelements”. In this sense such data is collected for example within the transnational systemof the European Environment Information and Observation Network Eionet with its
38 member and cooperating countries; www.eionet.europa.eu (accessed 26 Apr.2024).
129. NEA (2022), supra note 115, p. 18130. EU Environmental Liability Directive, supra note 103, p. 57, Preamble.
131. Another major issue was the evacuation of persons and the many consequences for the
persons concerned. Evacuation is not a measure of interest in this head of damage, though.
132. European Geosciences Union (2019), “Fukushima Soil Decontamination: Lessons learned”,
SciTechDaily, https://scitechdaily.com/fukushima-soil-decontamination-lessons-learned(accessed 26 Apr 2024).
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gives us valuable insights into the effectiveness of decontamination techniques,particularly for removing cesium from the environment. 133
The decontamination techniques included, in cultivated areas within the special
decontamination zone, removing the surface layer of the soil to a depth of 5 cm andreplacing it with a new “soil” made of crushed granite available locally. In areas further
from the plant, substances known to fix or substitute for radiocaesium (potassium
fertilisers, zeolite powders) were applied to the soil. As far as woodland areas areconcerned, only those that were within 20 metres of the houses were treated (by cutting
branches and collecting litter). Residential areas were also cleaned (ditch cleaning, roof andgutter cleaning, etc.), and (vegetable) gardens were treated as cultivated areas. 134 As to theefficacy and costs of these measures:[R]emoving the surface layer of the soil to a thickness of 5 cm (2 in), the main
method used by the Japanese authorities to clean up cultivated land, has reduced
cesium concentrations by about 80% in treated areas. Nevertheless, the removal of
the uppermost part of the topsoil, which has proved effective in treating cultivatedland, has cost the Japanese state about €24 billion. This technique generates asignificant amount of waste, which is difficult to treat, transport and store forseveral decades…. 135
Further, even if the soil is decontaminated, “the re-cultivation of farmland after
decontamination raises additional questions associated with the fertility of remediatedsoils and the potential transfer of residual radiocesium to the plants.” 136
Another major issue is the disposal of waste. As an example, reference can again be
made to the Fukushima Daiichi experience. The decontaminated soil is not the only aspectof waste that is of concern but also the treated water that was collected and stored andbegan to be released into the sea in August 2023. 137 This could lead to further damage tothe environment.
“Recovery from a nuclear or radiological accident is a long, complex and resourceintensive process.” 138 National emergency response and preparedness frameworks will beof great importance for national authorities to assess and decide what measures will betaken and in which order. After the accident at Chernobyl, improvements have also been
made in this area. Recovery measures aim to ensure health and well-being, support theeconomy, and protect the environment. 139



2.1.2.

Reasonable measures

The term “reasonable”, mentioned in this head of damage, is further defined in theConventions:“Reasonable measures” means measures which are found under the law of thecompetent court to be appropriate and proportionate, having regard to all thecircumstances, for example:1.

the nature and extent of the nuclear damage incurred or, in the case of
preventive measures, the nature and extent of the risk of such damage;

133.
134.
135.
136.

Ibid.
Ibid.
Ibid.
Evrard, O., Laceby, J.P., and Nakao, A. (2019), “Effectiveness of landscape decontamination
following the Fukushima nuclear accident: a review”, SOIL, Vol. 5, Issue 2, Copernicus GmbH,
Göttingen, Germany, p. 333, https://doi.org/10.5194/soil-5-333-2019 (accessed 26 Apr. 2024).
137. IAEA (n.d.), “Fukushima Daiichi ALPS Treated Water Discharge”, www.iaea.org/topics/
response/fukushima-daiichi-nuclear-accident/fukushima-daiichi-alps-treated-waterdischarge (accessed 26 Apr. 2024).
138. NEA (2022), supra note 115, p. 11.
139. Ibid.

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the extent to which, at the time they are taken, such measures are likely tobe effective; and3.

relevant scientific and technical expertise. 140

It was important for the drafters of the Conventions that implicated measures bereasonable; therefore, this definition was included, making clear “that the competent court
is responsible for determining whether a measure is reasonable under its national law, taking
into account all relevant factors.” 141 The terms “reasonable measures”, “appropriate” and“proportionate” are undefined legal terms that must be interpreted by the national court.
Roland Dussart-Desart can be quoted here as saying: “This framework is even rounded off
by a definition of reasonable measures which could well appear shocking to judges who
apply the principle of proportionality on a daily basis, but they will be consoled by the factthat the circumstances to be taken into account are given for information only.”142
2.1.2.1

Measures found under the law of the competent court to be appropriate and proportionate

The competent court must assess whether measures to reinstate the environment areappropriate and proportionate. It must be pointed out that in the process of adopting the
Revised Vienna Convention “there was also some movement towards allowing
compensation even when reinstatement is impossible.” 143 As this suggestion was not,ultimately, incorporated into the Conventions, a competent court may view this as anindicator that a measure may only be reasonable when reinstatement is possible. However,this should not be taken to mean that reinstatement of the environment to its original statemust be possible. Nature cannot be replaced one-to-one. It is likely that competent courts
would impose a certain degree of restraint on themselves when examining theappropriateness and proportionality of measures implemented by competent administrative
authorities. In Switzerland, according to the case law of the Federal Supreme Court, thiswould be the case especially when an authority has special expertise, that the court itself
lacks. In such a case the court should respect this technical discretion of the competentauthority. 144 Certainly, any determination as to the reasonableness of a measure should bebased on the information available at the time the measure was taken. 145 In the initial phase
after a major nuclear accident, there is a great urgency to respond quickly and take measures
to mitigate damage. However, what would be considered reasonable in the moment may not
be viewed as such with the benefit of hindsight.
A competent court would likely refer to its national environmental laws to ascertain
whether measures are reasonable. The European Union member states, for example, have
implemented the provisions of the EU Environmental Liability Directive in their nationallaws, as discussed above and therefore will apply the provisions of the Directive. In
Switzerland, radioactive substances and ionising rays are not covered by environmental
law but by radiation protection laws and nuclear energy laws. The purpose of bothlegislations is to protect people and the environment from hazards caused by radiation146.

140. The quoted text appears in the Revised Paris Convention, supra note 6, Article 1(a)(x) andthe CSC, supra note 12, Article I(1) and is virtually identical to the Revised Vienna
Convention, supra note 5, Article I(1)(o).
141. See Explanatory Texts, supra note 20, p. 2.
142. Dussart-Desart, R. (2005), supra note 105, p. 15.
143. Explanatory Texts, supra note 20, pp. 34-36.
144. Decision of the Federal Supreme Court, March 28, 2013, published in: Entscheidungen desschweizerischen Bundesgerichts [BGE] 139 II 85, p. 199.
145. This is evident from the wording in all three conventions, where it is expressly stated that
all circumstances must be taken into account, including for example “the extent to which,at the time they are taken, such measures are likely to be efficacies” (Paris Convention, supranote 6, Article 1(a)(x), para. 2; Revised Vienna Convention, supra note 5, Article I(1)(o)(ii); CSC,
supra note 12, Article I(1)(l)(ii).
146. Swiss Environmental Protection Act, supra note 60, Article 1, para. 1; Nuclear Energy Act of
21 March 2003, Article 1, Classified Compilation 732.1, (unofficial English translation
available at: www.fedlex.admin.ch/eli/cc/2004/723/en (accessed 26 Apr. 2024)).
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However, neither law defines the term “environment” or “protection of the environment”.
It is therefore expected that a Swiss court will rely on environmental law to interpret theseterms.
A competent court must consider all circumstances when assessing thereasonableness of a measure. 147 The following three elements are explicitly enumerated in
the Conventions as examples: (1) the nature and extent of the nuclear damage incurred;(2) the extent to which, at the time they are taken, such measures are likely to be effective;and (3) the relevant scientific and technical expertise. As to the first, the nature and extent
of the nuclear damage incurred, reference may be made to the statements regarding thesignificance or insignificance of an environmental damage (see section 2.1.8., below). If thedamage is insignificant, no remedy will be awarded by the court.
The second element emphasises the likely effectiveness of a measure. Even if aprognosis seems sufficient, it must be based on scientific facts or previous experience. It istherefore unlikely that new, unproven measures would be compensable unless theremediating effect could be predicted based on previous experience. As already mentioned,
according to the wording, the knowledge at the time the measures are taken is decisive.
How the effectiveness of measures is to be examined, must be read together with the third
element (see next bullet point). Preventive measures 148 (another new head of damage
under the Conventions) must also be reasonable and approved by the competent national
authority, but they may be compensated even in the case when the measures turn out tobe ineffective. 149 Preventive measures are meant to prevent or minimise nuclear damage
in general. Authorities will take such preventive measures first and foremost in the interestof the health of people, without paying much attention to the fact that they are also costeffective or cost-reducing. As a by-product, they can also reduce the damage to becompensated and thus also be in the interest of the liable person. 150
Finally, as to the relevant scientific and technical expertise, the accident at Chernobyl
happened more than 30 years ago. Despite the enormous radiological consequences to thecontaminated area still present, there are also interesting developments. For instance, a 2022
article from the UK Centre for Ecology & Hydrology states that the current Chernobyl
radiation levels do not directly impact soil organisms and points out that “as soil organisms
play an essential role supporting other wildlife, (…) [this] provides further important
evidence that the most radioactively contaminated ecosystem on Earth is in a good position
to continue to recover following the 1986 disaster” and that their “finding that soil organisms
are not directly affected by current radiation doses is good news for the ecosystem as awhole.” 151 An article from GEO magazine states, that “in the spring of 1987, the populationsof the already very fertile rodents had recovered” and “[e]lk, foxes, eagles, and wolves
reproduce rapidly in the contaminated area where the Chernobyl nuclear disaster occurred
35 years ago. The astonishing thing: The radiation exposure seems to harm the animals lessthan the humans” and adds that “this phenomenon can only be explained by a kind ofradiation resistance that many animal species must have developed.” 152147. Paris Convention, supra note 6, Article 1(a)(x); Revised Vienna Convention, supra note 5,
Article I(1)(o); CSC, supra note 12, Article I(1)(l).
148. Revised Paris Convention, supra note 6, Article 1(a)(vii)(6) and (ix); Revised Vienna
Convention, supra note 5, Article I(1)(k)(6); and CSC, supra note 12, Article I(1)(h).
149. Explanatory Texts, supra note 20, p. 39.
150. Ibid.
151. Beresford, N.A. et al. (2022), “Current Chernobyl Radiation Levels do not Directly Impact
Soil Organisms”, UK Centre for Ecology & Hydrology, www.ceh.ac.uk/current-chernobylradiation-levels-do-not-directly-impact-soil-organisms.
152. Wahnbaeck, C. (n.d.), “Wie das Leben in die Todeszone um Tschernobyl zurückkehrte” [HowLife Returned to the Death Zone around Chernobyl], GEO, www.geo.de/natur/tierwelt/77rtkl-tschernobyl-wie-das-leben-die-todeszone-zurueckkehrte#:~:text=Wer%20sich%20
heute%20in%20die,Eisv%C3%B6gel%2C%20im%20Wasser%20schwimmen%20Fischoter(accessed 26 Apr. 2024).

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These findings suggest that, in certain circumstances, it may not be reasonable in thesense of the condition referred to in this paragraph to take environmental measures
without delay, or at all, as it may be that the environment will restore by its own over time.
A competent court will probably consider such relevant scientific and technical data. And
it will of course take other points into consideration, such as how long it will take for suchan area to be restored, which area is involved (residential area, agricultural land,
inhospitable land, forests), how large the area is in absolute terms and in relation to thearea of the affected country, what financial resources are available and whether there areother areas where restoration would appear to make more sense. It is clear from this thatall specific circumstances must be considered. It is not possible at this point to set a
criterion – not even a time limit – for deciding whether a contaminated area should be left
to its own or whether it should be restored. Considering all the circumstances, it can only
be said that early measures may not be appropriate according to the competent court, nor
may they be later.
If, because of the lack of reasonableness, no remedy is possible for such damage to theenvironment, a competent court may award compensation under another head of damage,for example “loss of income deriving from an economic interest in any use or enjoymentof the environment” (discussed below), if the relevant conditions are met.



2.1.3.

Approval by the competent authority

Pursuant to the Conventions, measures must be approved by the competent authority ofthe state where the measures intended to reinstate impaired environment were taken.153
It is incumbent upon the national law of the state to identify which national authority or
authorities are competent to approve such measures. As measures of reinstatement“mostly cover components of the environment which are not owned by anyone, but rather
are available for the benefit of the general public, it will normally be the competent publicauthorities who are entitled to take such measures and claim compensation therefor”.154
The wording of the provision in the Conventions does not exclude the possibility that suchan authorisation may only be granted retrospectively, i.e. at the time when the competent
national court deals with the claim for compensation. Moreover, a lack of authorisation
should not lead to a claim for compensation being rejected for this reason alone. This viewis underpinned by the Explanatory Texts, which state:
As for the need for a previous authorization, this clearly refers to measures taken
by private persons; the fact that such measures have been authorized by acompetent public authority indicates that such measures are considered, at least
prima facie, to be reasonable; on the other hand, if such approval is not requiredby the law of the State where the measures are taken, the fact that these measures
have not been previously authorized does not prevent compensation if they,
nevertheless, appear to be reasonable. 155
This statement was made with regard to preventive measures (see section 4, below),
but there is no reason why the statement should not also apply here. These considerations
should apply all the more so in the case where national law does not provide for priorapproval. The prerequisite of approval certainly makes sense regarding co-ordination of

153. Article 1(a)(viii) Paris Convention, supra note 6; Article I(1)(m) Revised Vienna Convention,
supra note 5; Article 1(g) CSC, supra note 12.
154. Exposé des Motifs, supra note 7, p. 24, para. 59(c).
155. Explanatory Texts, supra note 20, p. 39. See also n. 135: “No reference was made to priorauthorization in the original proposal discussed within the Standing Committee. The
suggestion that preventive measures should only be covered if they were authorized by
the competent authority was first made within the Drafting Committee during theeleventh session. At that time, however, it was pointed out that ‘it would be for the court
to decide whether preventive measures were reasonable’ and the suggestion was not
adopted.” Even if the requirement for approval has subsequently been included in the textof the conventions, it would be disturbing if a lack of approval were to lead to a rejectionof compensation claims.
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measures, which may increase the likelihood that the measures are effective. The approvalshould also make it easier for the national court, which may not have the necessary
expertise, to assess the reasonableness for a measure.



2.1.4.

Reinstatement of environment

The reinstatement of the environment encompasses all measures that will lead to, or atleast towards, the conditions as they were before the accident. 156 These baseline conditions
will have to be assessed. The environment is already monitored in many countries, which
is why there should already be sufficient relevant data. 157



2.1.5.

An environment that is impaired

The impairment may occur directly or indirectly. As for example “air pollution does not in
itself constitute environmental damage” but damage to natural resources may arise as aresult of air pollution.158 In order to determine whether and to what extent the environmenthas been impaired, the situation before and the situation after the damaging occurrence, inwhich radioactivity was released, must be compared. Radioactivity cannot always be seen;
likewise, its effects on nature will not always be seen, or may be seen only after years of therelease of radioactivity. The impairment has to be assessed with reference to the baseline
condition. 159 The baseline is the condition that would have existed had the environmental
damage (caused by the release of radioactivity) not occurred. 160 The impairment is usually
established by measurements and monitoring of the environment over a long period oftime. 161 After a nuclear incident there will be comprehensive environmental monitoring in
the response phase and it will continue long into the recovery phase. 162



2.1.6.
Measures that aim to reinstate or restore damaged or destroyedcomponents of the environment or introduce the equivalent of thesecomponents into the environment – where reasonable

Some examples of measures that might be taken to reinstate the environment have been
discussed, above (section 2.1.1.). It is important to emphasise that the environment cannot
be restored to its exact, original state. Rather the goal is to restore it as a functional
ecosystem. Nature is composed of components that need and support each other so thatthe ecosystem can function as a whole. “An ecosystem is a geographic area where plants,
animals, and other organisms, as well as weather and landscape, work together to form a
bubble of life.” 163 “Every factor in an ecosystem depends on every other factor, either
directly or indirectly.” 164 Measures can therefore only cover components of the system, as156. The Conventions do not define, what reinstatement of the environment is. The Explanatory
Texts, supra note 20, p. 38, and European Geosciences Union (2019), supra note 132, state thatthe concept is “based on similar solutions adopted by other international conventions”. Seepara. 2.1.1, supra; the EU Environmental Liability Directive, for instance, sets out a common
framework to be followed in order to choose the most appropriate measures to ensure theremedying of environmental damage. EU Environmental Liability Directivesupra note 103,
p. 15, Annex II,
157. See section 2.1.2.1.
158. Judgment of the Court (Second Chamber) of 13 July 2017, Túrkevei Tejtermelő Kft. V.
Országos Környezetvédelmi és Természetvédelmi Főfelügyelőség, C-129/16, EU:C:2017:136.
para. 41.
159. EU Environmental Liability Directive, supra note 103, Article 2, para. 1, Annex I.
160. Ibid., Article 2, para. 14.
161. NEA (2022), supra note 115, p. 12.
162. Ibid., p. 61; see also IAEA (2015), Preparedness and Response for a Nuclear or Radiological
Emergency, IAEA Safety Standards Series, General Safety Requirements, No. GSR Part 7,
IAEA, Vienna.
163. National Geographic, Education (n.d.), “Encylopedic Entry: Ecosystem”, https://education.
nationalgeographic.org/resource/ecosystem (accessed 26 Apr. 2024).
164. Ibid.

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it is also described in the Conventions (“reinstate or restore damaged or destroyedcomponents of the environment”, “equivalent of these components”). It is therefore
important to choose the right components, and in the relevant order, to have the greatest
possible effect. “Once an ecosystem has been proven to be degraded or broken, restoring
its ability to support life comes in stages. The first step in fixing a degraded ecosystem [willbe] soil stabilization.” 165 As seen in the Fukushima Daiichi nuclear accident, thedecontamination of land will be such a first step to help further the restoration of theenvironment. Afterwards, microorganisms, plants or animals that have disappeared due
to radioactive contamination can be reintroduced. Equivalent of these components could
be reintroduced instead if these are better suited to attract or support other components
and thus support the regeneration of the environment.



2.1.7.

The impairment must not be insignificant

The Conventions do not further explain the terms “insignificant” or “significant”. This issue– as with many others – is left to the interpretation of the competent national court,166
which must decide if the environment damage is insignificant or not. Thus, the court will
have to assess the specific circumstances of the individual case and it must decide uponwhich criteria the significance is to be assessed. Is it related to an environment that is tobe protected for its own sake? Or is the environment assessed based on its utility to
mankind, with a focus on minimising environmentally harmful effects on humans?
Guidance may be found in Annex I of the EU Environmental Liability Directive, which
provides criteria for determining the significance of environmental damage. Although notdirectly applicable to nuclear damage, the Directive could nonetheless serve as a persuasive
authority for a competent court assessing the significance of impairment to theenvironment. This assessment should be determined by means of measurable data, aspreviously discussed. The Directive enumerates, for example, the number of individuals andtheir density, the rarity of the species or habitat, the species’ “capacity for propagation” andtheir “habitat’s capacity for natural regeneration”. It is of interest that damage with a proveneffect on human health is explicitly considered as significant damage under the Directive.167
The question of whether damage is significant or not for the environment would, therefore,
not need to be further assessed once it is determined that there is a proven effect on humanhealth. This view will probably also apply within the Conventions. Furthermore, Annex I to
the Directive enumerates some situations that do not have to be classified as significant.
Such is the case for “damage to species or habitats for which it is established that they will
recover, within a short time and without intervention, either to the baseline condition or toa condition which leads, solely by virtue of the dynamics of the species or habitat, to acondition deemed equivalent or superior to the baseline condition.” 168
In contrast, civil liability law does not focus on the insignificance or significance ofdamage. There is no such restriction for the heads of damage loss of life or personal injury,
or loss of or damage to property in the Conventions. 169 If there is personal injury or property
damage, compensation will be generally awarded (up to the value of the property andprovided other required conditions are met). Nevertheless, restrictions are also possible
here. Pursuant to the Conventions, the nature, form and extent of the compensation,
within the limits of the Conventions, as well as the equitable distribution thereof, shall begoverned by national law. 170 Accordingly, national jurisdictions can apply the principle of165. Aturu, T.A. (2022), “How to Fix a Broken System”, reNature, www.renature.co/articles/howto-fix-a-broken-ecosystem (accessed 26 Apr. 2024).
166. Exposé des Motifs, supra note 7, p. 23, para. 59(a); Explanatory Texts, supra note 20, pp. 34-39,
nn. 118, 123 and 134 (discussions concerning wording of new damage heads).
167. EU Environmental Liability Directive, supra note 103, Annex I.
168. Ibid.; see also section 2.1.2.1, supra.
169. Paris Convention, supra note 6, Article 1(a)(vii)(1 and 2); Revised Vienna Convention, supranote 5, Article I(1)(k)(i and ii); and CSC, supra note 12, Article I(1)(f)(i and ii).
170. Paris Convention, supra note 6, Article 11; Revised Vienna Convention, supra note 5,
Article VIII(1); and CSC, supra note 12, Annex, Article 11.
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ARTICLESde minimis non curat praetor, which means that a court can, for example, for reasons ofprocedural economy, refrain from examining and taking into account minor items whencalculating damages. 171 Furthermore, national law can also take measures for equitable
distribution and reduce or exclude compensation if the available financial resources are
not sufficient to compensate all damages. 172



2.1.8.

The measures are actually taken or are to be taken

This condition also differs greatly from civil liability law, under which victims are typically
free to use awarded compensation however they like. For example, if in the aftermath of a
nuclear accident, an evacuated person is awarded a sum equal to the value of their house,
this person is not compelled to buy a new house with that compensation. If the person
buys a new house that costs less than the received compensation, the difference does notneed to be given back.
In the case of measures of reinstatement of impaired environment, costs are only
remedied when measures are actually taken or to be taken. 173 In other words, that is, whenmeasures are taken costs will arise, and only these costs are awarded. By implication, thismust mean that if a remedy for measures still to be taken is awarded, and it is higher thanthe effectively spent costs, the difference may be required to be returned.



2.1.9.

The claimant is entitled to take such measures

It is the state where the nuclear damage occurred that can determine who is entitled totake such measures. 174 In principle, state authorities will probably be entitled to take suchmeasures pursuant to the emergency response and preparedness framework (see also
section 2.1.4, supra) and pursuant to their role as owner of public property. The
Conventions don’t exclude non-governmental organisations or private or legal persons.
For them, it will be beneficial to seek approval by the competent authority before taking
measures so as to make sure costs will be remedied. 175 Clean-up and decontamination
work – as it involves handling radioactivity – will generally be carried out with well-trained
private persons or organisations. It is not the same situation as after a storm or anearthquake, for instance, where a large number of people help clean up. For this reason,
too, state approval is beneficial so that the requirements of radiation protection can be
met. In areas where radioactivity no longer poses a threat, these concerns no longer apply
and private individuals can also help to restore the environment, for example with animalhusbandry programmes or native plant re-seeding programmes.



2.1.10.

The measures’ generated costs

It is difficult, if not impossible, to determine the value of the environment in monetary
terms. 176 The environment cannot be sold and has therefore no market value. This is thereason why this head of damage is based on costs. If there are no measures taken, there
are no costs and consequently no remediation.
A prerequisite for deciding whether, and which, measures should be taken is anunderstanding of the state of the environment prior to the nuclear incident and the degree

171. For Switzerland: Brehm, R., (2021), Berner Kommentar, Die Entstehung durch unerlaubte
Handlungen, Articles 41–61 OR, Obligationenrecht, Allgemeine Bestimmungen [Berne
Commentary, obligations in tort, Art. 41-61 Swiss Code of Obligations, General Provisions],
Stämpfli Verlag, Berne, note 69a (translated from original German).
172. See Exposé des Motifs, supra note 7, p. 35, paras. 89-90; Article VIII para. 2 of the Vienna
Convention, supra note 5.
173. Revised Paris Convention, supra note 6, Article 1(a)(vii)(4); Revised Vienna Convention,
supra note 5, Article I(1)(k)(4); and CSC, supra note 12, Article I(1)(f)(iv).
174. Revised Paris Convention, supra note 6 Article 1(a)(viii); Revised Vienna Convention, supranote 5, Article I(1)(m); and CSC, supra note 12, Article I(g).
175. See section 2.1.3.
176. Explanatory Texts, supra note 20, p. 38.

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ARTICLESof deterioration from that previously existing condition (due to the release of radioactivity).
This understanding is principally accomplished by taking extensive measurements andmonitoring. The corresponding costs should be considered as part of the costs of themeasures under this head of damage and should be remedied. 177



2.1.11.
Costs that are not included in the head of damage “loss of ordamage to property”

A competent court must ensure that damage is not asserted twice. Accordingly, theConventions state that the costs of measures of reinstatement of an impaired environment
are to be remedied insofar as they are not included in the head of damage of “loss of ordamage to property”. 178
The question of interest here arises when environment that is privately owned, suchas farmland, gardens or woods, is concerned (the second circumstance, as explained in
section 2, supra). Only if a state authority (or a third person that is not the landowner) takes
measures which also impact private property (e.g. decontamination measures), and thecost of which is not charged to the owner, do they fall under this head of damage. 179 If theauthority were to impose all or part of the costs on the owner, then these costs should, inturn, be recoverable from the owner as compensation under the head of property damage.
This does not preclude the injured owner from claiming other damage to the same
property (e.g. a diminution in the value of their land despite the decontamination
measures). As an example, to illustrate this: agricultural land is decontaminated bytransporting away and disposing of the radioactive topsoil layer. These measures are taken
by a state authority and the costs are not charged to the property owner. After thedecontamination, the landowner replaces the top layer of soil with earth at their own costs.
The landowner may be compensated for the related costs under the head of damage “lossof or damage to property”. If the owner decontaminates his property himself orcommissions someone else to do so, the costs incurred for this are deemed to be property
damage.



2.1.12.

The damage has to arise out of or result from ionising radiation“If there is no emission of radiation then there cannot be any nuclear damage.” 180 The
condition of ionising radiation is applicable to all heads of damage in the Conventions
except for preventive measures. 181



2.1.13.
The extent of the damage is determined by the law of thecompetent court

It is important to stress, that “the question of the admissibility of claims for most of the
new heads of damage, (…) is not left to the discretion of national law” and “the law of thecompetent court will have to be referred to primarily in order to determine their precise
meaning, especially in relation to the concept of property damage”. 182 The inclusion of the
new heads of damage “was intended to require the competent court to consider suchdamage”:
The addition of the phrase “to the extent determined by the law of the competentcourt” was intended to emphasize that the breadth of such coverage continued tobe left to the competent court to determine. The Group [INLEX] felt that it was

177. EU Environmental Liability Directive, supra note 103, p. 2.; see also section 2.1.5, supra.
178. Paris Convention, supra note 6, Article 1(a)(vii)(4); Revised Vienna Convention, supra note 5,
Article I(1)(k)(iv); and CSC, supra note 12, Article I(f)(iv).
179. Revised Paris Convention, supra note 6, Article 1(a)(vii)(3); Revised Vienna Convention,
supra note 5, Article I(1)(k)(iv); and CSC, supra note 12, Article I(f)(iv).
180. Exposé des Motifs, supra note 7, p. 25, para. 61.
181. Revised Paris Convention, supra note 6, Article 1(a)(vii) ; Revised Vienna Convention, supranote 5, Article I(1)(k) ; and CSC, supra note 12, Article I(f).
182. Explanatory Texts, supra note 20, p. 35.
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desirable to leave this discretion as to the exact coverage of nuclear damage tonational law and the competent court, recognizing at the same time that this may
result in different coverage in different situations. 183



2.1.14.

Concluding remarks

As seen, a competent national court must consider multiple questions when assessing thehead of damage of costs of measures of reinstatement of impaired environment. There are
numerous elements to assess, elements that are not defined in the Conventions and must
therefore be interpreted. The competent court will probably have great discretion in doing
so. In its interpretation of the indeterminate legal terms, other non-legal considerations
will likely also be taken into account. This may influence whether this head ofenvironmental damage will ultimately be interpreted more narrowly or broadly by acompetent court. For example, it will be relevant whether a country supports nuclear
energy or not and whether its laws give high priority to environmental protection or not.
In addition, how high the expected total damage will be in relation to the available
financial resources is also decisive. In this sense, unequal applications between countries
are all but assured. This is somewhat offset, however, by the fact that, as a generalprinciple, as in the Revised Paris Convention and in the Revised Vienna Convention, only
the competent court of the state in whose territory the nuclear incident occurs has
jurisdiction over all compensation and remediation claims arising from the incident. So,
the same considerations apply to all 184 victims of a given nuclear incident and accordingly
the principle of equal treatment of victims can be complied with.

3. The new head of damage of “loss of income deriving from an economic interest in
any use or enjoyment of the environment”
This new head of damage is commonly known as the “economic loss” head. In civil liability
law, economic loss is usually an indirect damage because with this head of damage neithera claimant nor their property rights need be directly affected. Rather, they suffer damage
to their assets. In the causal chain, the economic loss comes only after personal injury orproperty damage has occurred. The loss is dependent on these. What is unique about thisnew head of damage is that the economic loss is not linked to personal or property damage
but to nuclear damage to the environment to which the injured party does not have aproperty right. Therefore, it is not really a question of environmental damage as discussed
before (and therefore the terminology “compensation” and not “remediation” is used here).
It is above all a question of whether the claimant incurred indirect damage and if it is tobe compensated or not.
Nevertheless, it is one of the new heads of damage referring to, and involving, theenvironment. In the beginning of the discussions concerning the amendment to theVienna Convention, a provision regarding economic loss was included in the provision of
costs of measures of reinstatement. 185 Only after discussions did they become two
independent types of damage. 186 Therefore, we will discuss this head of damage here.
With this new head of damage in the Conventions, it is made clear that a person
incurring such damage may be granted compensation by a competent court. In the absenceof such a regulation, competent national courts were not prohibited from including suchdamage pursuant to their national laws.
Moreover, it is for the applicable law to determine the precise meaning of loss of,or damage to, property, and the extent to which environmental damage can becompensated under those heads. The wide discretion thus given to the national

183.
184.
185.
186.

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Ibid., p. 34, n. 120 (citing the fourth meeting of INLEX, held 7-11 February 2005).
“All victims” are those that fall within the scope of application of the respective Conventions.
Explanatory Texts, supra note 20, p. 37, n. 123.
Ibid.
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legislation of the Contracting Parties may give rise to uncertainties as to the extent
of compensation to be paid in case of a nuclear incident. 187
As we know, the competent courts have great discretion when qualifying a situation
as damage falling under the Conventions. However, with the new head of damage, it isexpressly made clear that the contracting parties want to provide remedy for suchdamages, and this leads (or should lead) to a certain harmonisation among countries.
In contrast to the head of damage of costs of measures of reinstatement of an impaired
environment, discussed supra, the elements here are less numerous. However, there arenevertheless various terms that are not self-explanatory and must be interpreted. As
before, the relevant article from the Revised Paris Convention must be cited.
“Nuclear damage” means,
1.

Loss of life or personal injury;

2.

Loss of or damage to property;

and each of the following to the extent determined by the law of the competentcourt,…
5. loss of income deriving from a direct economic interest in any use or enjoymentof the environment, incurred as a result of a significant impairment of thatenvironment, and insofar as not included in sub-paragraph 2 above;…
to the extent that the loss or damage arises out of or results from ionising radiation
emitted by any source of radiation inside a nuclear installation, or emitted from
nuclear fuel or radioactive products or waste in, or of nuclear substances coming
from, originating in, or sent to, a nuclear installation, whether so arising from theradioactive properties of such matter, or from a combination of radioactive
properties with toxic, explosive or other hazardous properties of such matter. 188
This head of damage is defined in the same way in the Revised Vienna Convention andin the CSC, with one difference: the Revised Paris Convention states that a “direct economic
interest” 189 is required, whereas in the Revised Vienna Convention and in the CSC the word
“direct” is missing. 190 The significance of this difference is discussed below.
The elements of this head of damage that must be fulfilled to be compensated are:•loss of income;•economic interest (which must be “direct” under the Paris Convention);•

economic interest in any use or enjoyment of the environment;•

significant impairment of the environment; and•not included in the head of damage of loss of or damage to property.

We will now take a closer look at these individual elements and discuss someexamples.

187.
188.
189.
190.

Ibid., p. 34.
Revised Paris Convention, supra note 6, Article 1(a)(vii)(5).
Ibid. (emphasis added).
Revised Vienna Convention, supra note 5, Article I(1)(k); and CSC, supra note 12, Article I(f).

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3.1.

The notion of “loss of income”

First, we will compare the wording here with that of the head of damage of economic loss.
Economic loss arising from damage to persons or property is explicitly included as damage
in all three Conventions. 191 The Revised Vienna Convention and the CSC also provide acatch-all clause covering “economic loss arising from” damages to persons or property. 192
This is in contrast to the Revised Paris Convention, where this form of loss is not
mentioned but “is generally considered to be covered” by the other heads of damage. 193 We
will not go further into the content of this type of damage. The text for the head of damageof interest here expressly speaks of “loss of income”. This term is distinguishable from theaforementioned “economic loss”, as loss of income is narrower than economic loss since
it only encompasses total or partial loss of earnings related to damage to the environment.
So, “anyone who merely has rights of enjoyment of the environment without earningmoney from it has no right to be compensated.” 194
There may be a case of loss of income when a fisher, who earns a living from theprofession, cannot fish anymore because the fish in the lake or in the sea arecontaminated. 195 In contrast, the fisher who fishes only as a hobby will suffer no loss of
income. The same applies to a person who collects forest mushrooms or herbs, or to thebeekeeper who cannot let their bees fly, because the surrounding environment isirradiated. In all cases the question of whether an activity is engaged in for a living or only
as a hobby (i.e. not earning money with it) is decisive. 196 On the basis of the obligation to
mitigate damages, it could be interpreted that claimants under this head of damage may
be required to move, either temporarily or in the longer term, to other areas, if doing sowould mitigate their loss of income. This would be for the competent court to determine.

3.2.

The notion of “direct economic interest”

As stated earlier, the caveat that the affected economic interest must be “direct” appears
only in the Revised Paris Convention. It is absent in the Revised Vienna Convention and in
the CSC. The Exposé des Motifs to the Revised Paris Convention explains that the inclusionof the term “direct” economic interest was intended “to ensure that compensation will not
be awarded for nuclear damage that is too remote.” 197 However, the necessity of
establishing a causal chain is already an important prerequisite in civil liability law and it
must be assumed that the term “direct” is only an indication that there must be sufficientcausation in a claim, and that the term does not imply a further limitation. The materials
and the examples mentioned in the Exposé des Motifs do not indicate otherwise. As the
Revised Vienna Convention and the CSC list the same examples, it is to be assumed that
there is no material difference among the Conventions.
In the previous examples, the fisher and the mushroom collector both have a direct
economic interest. The competent national court will have to decide if the supplier of fishingrods and bait, or of baskets, or outdoor clothing, respectively, whose income has also
decreased because the fisher or the mushroom collector do not work anymore, is too remotein the chain of causation or not. The Paris Convention leaves the court with less discretionon this question, which is answered in the negative in the Exposé des Motifs. 198 The Explanatory
Texts to the Revised Vienna Convention and the CSC state “a court always had to consider atwhat point damage becomes too remote to recover and that the inclusion of “direct” [in the191. Revised Paris Convention, supra note 6, Article 1(a)(vii)(3); Revised Vienna Convention,
supra note 5, Article I(1)(k)(3); and CSC, supra note 12, Article I(f)(iii).
192. Revised Vienna Convention, supra note 5, Article I(1)(k)(vii); and CSC, supra note 12,
Article I(f)(vii).
193. Exposé des Motifs, supra note 7, p. 23, para. 56.
194. See Dussart-Desart, R. (2006), supra note 39, p. 223.
195. See Exposé des Motifs, supra note 7, p. 24, para. 60(a); Explanatory Texts, supra note 20, p. 37.
196. Dussart-Desart, R. (2005), supra note 105, p. 15.
197. Exposé des Motifs, supra note 7, p. 24, para. 60(b).
198. Ibid.

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Paris Convention] provides guidance on how a court should consider remoteness but stillleaves the ultimate determination with the competent court”. 199

3.3.

The notion of “economic interest in any use or enjoyment of the environment”

As mentioned before, under this head of damage the environment in question does notbelong to the claimant. The environment in this sense – forests, lakes, rivers, mountains,etc. – is owned by the public. The claimant uses and enjoys the environment almost as if
they had (some) ownership rights to it as we have seen in the previous examples of thefisher and the mushroom collector, where their interest is of an economic nature. Thismeans that they intend to generate an income based on this environment. Anotherexample can be found in the tourism sector. The explanatory materials to the Conventions
speak expressly of the case, where:
tourists may stay away from a particular holiday resort because the public beachused by the resort is contaminated by radiation. Once again, since the proprietor of
the resort is not the owner of the beach, the fact that the beach is contaminateddoes not constitute a loss of or damage to the resort owner’s property. Yet it willalmost certainly result in a loss of income to the resort owner who will be entitled
to compensation if he can show a sufficient direct, economic interest in the use or
enjoyment of the damaged environment. 200
In this example, it is primarily the tourists who use and enjoy the beach. They will nothave a loss of income because of an impairment of the environment, and therefore nocorresponding claim for damages, but the example shows that the term “any” (in “any use
or enjoyment of the environment”) is probably intended to broaden the meaning.
Therefore, the resort owner, who benefits economically from the existing environment orfrom the location of the hotel in such an environment, is also included and may file a claim
for loss of income accordingly. In this respect, the owner acts as one who makes thisenvironment “available” to their guests.
Another question a competent national court will have to consider is how far away
such a resort can be from an impaired environment and still assert a basis forcompensation for loss of income. The case that a resort located adjacent to a contaminatedbeach is not itself contaminated seems somewhat unlikely. But what about a resort that isseveral hundred metres away from the beach or several kilometres? Should it be treateddifferently just because it is not near the beach? The tourism of an entire region can beaffected if a beach on a lake or, for example, a natural recreation area is contaminated andcan no longer be entered. Hotels, restaurants and organisers of hiking or boat tours may all
be affected. These cases will probably also fall under the term of “economic interest of any
use and enjoyment of the environment” and claimants suffering lost revenue will be able
to claim compensation. As previously mentioned, in order to mitigate damage, the persons
concerned could be required to move to another area where practicable. This could concern
providers of professional hikes, painting courses, yoga courses, etc.

3.4.

The impairment of the environment is significant

The term “significant” is not defined in the Conventions. However, as the term is identicalto that used in the head of damage of cost of measures of reinstatement of an impaired
environment and the explanatory materials to the Conventions are silent on this element,“significance” should be interpreted in the same way for both heads of damage. Reference
can therefore be made to section 2.1.8, supra. However, it should be noted here that there
is probably no difference for a guest whether the radioactive contamination is significant
or not. When it comes to radioactivity, the fear is great, regardless of the level of radiation.
Accordingly, guests will be absent in both cases and, depending on the court’s assessment,
the hotel owner and the organisers of tours and courses may receive compensation.

199. Explanatory Texts, supra note 20, p. 37 and n. 126.
200. Exposé des Motifs, supra note 7 p. 24, para. 60(a); see also Explanatory Texts, supra note 20, p. 37.
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3.5.
The damage is not already included in the head of damage of loss of or damage
to property
As already mentioned, this head of damage assumes that the environment is impaired. It
does not apply when the property of the claimant is damaged. However, if, in the cases
mentioned where the resort itself or the entire equipment of the organisers of hiking tours
is contaminated, the owner may claim economic loss. 201 Since the term is broader than lossof income, this will be advantageous for the owner. In any case, the court must ensure thatthe damage is compensated only once.

3.6.

Concluding remarks

The new head of damage of loss of income deriving from an economic interest in any use
or enjoyment of the environment is not an environmental damage per se but falls under
the category of economic loss and claims ultimately derive from a damaged environment.
The notion of loss of income is narrower than economic loss and the competent court must
decide how broad the scope should be. The principle of equal treatment of equal situations
will also play a role, as seen in the different hypothetical examples discussed above.

4. The head of damage of “costs of preventive measures”
This head of damage is also a new head of damage in the Conventions but does not directlycompensate for environmental damage resulting from a nuclear incident. It is briefly
discussed here to show that the types of damage interact in a certain way. With preventive
measures, the impact on environmental (and other) damage can be mitigated or prevented.
It is therefore the only head of damage in the Conventions that does not have to arise outof or result from ionising radiation. This is “consistent with the objectives of theConventions to provide, that, if there is a nuclear incident, any claim for damage resulting
therefrom must be brought within the framework of the Conventions and cannot be
brought outside it.” 202 Furthermore, preventive measures – which must, of course, bereasonable and approved by the relevant competent authorities 203 – may be compensatedeven if they turn out to be ineffective (this is in contrast to the previously discussed costsof measures for reinstatement of impaired environment). 204 Taking the example of thefishers, it is possible that the fishers are prevented from catching or selling fish because
the fish are radioactively contaminated or, alternatively, that they are prevented fromdoing so due to preventive measures in place prohibiting the catching or sale of fish fromcertain waters (regardless of whether contaminated or not). Depending on thecircumstances, compensation may be paid, but under a different head of damage.

5. The competences and duties of the national courts
The Conventions require the competent national courts to include the following elementsin their adjudication:

201. Revised Paris Convention, supra note 6, Article 1(a)(vii)(3); Revised Vienna Convention,
supra note 5, Article I(1)(k)(iii); and CSC, supra note 12, Article I(f)(iii).
202. Explanatory Texts, supra note 20, p. 40, n. 137.
203. Regarding the requirements for the compensation of preventive measures, see Paris
Convention, supra note 6, Article 1(a)(vii)(6) and (ix); Revised Vienna Convention, supranote 5, Article I(1)(k)(vi) and (n); and CSC, supra note 12, Article I(f)(vi) and (h).
204. Explanatory Texts, supra note 20, p. 39; Particularly in the case of precautionary measuresthat have to be ordered at the very beginning of a nuclear incident under time pressure
and where not all the circumstances have been clarified at the time they are issued, it may
turn out in retrospect that certain measures were perhaps not necessary at all or not tothe same extent.

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5.1.

The extent of the heads of damage discussed here 205

The court must decide, in accordance with its national law, whether a situation falls within
one of the new heads of damage. As we have seen, in the realm of compensable
environmental damage, a national court will encounter a great many vague legal concepts
that need to be interpreted. On the one hand, the court is granted a great deal of discretion.
On the other hand, unless the court is composed of appropriate specialists, it will probably
impose a certain restriction on itself when it comes to measures taken by specialist
authorities within the framework of the head of damage of costs of measures ofreinstatement of an impaired environment. In any case, as mentioned in section 2.1.14
supra, non-legal considerations will also influence the court’s interpretations andconsiderations. So, as of today, it is very difficult to determine how these new types ofdamage would be applied.

5.2.
The nature, form and content of the compensation, as well as its equitable
distribution
The Conventions also have another provision addressed to the courts which is generally
applicable. This provision states that the nature, form and extent of the compensation,
within the limits of the particular Convention, as well as the equitable distribution thereof,
shall be governed by national law. 206 This is about whether monetary compensation or
non-monetary compensation is awarded, how compensation is calculated and whether
there is satisfaction. Further, the court must consider whether there is a one-off payment
or a pension payment and what measures are taken if the available financial resources are
insufficient (e.g. prioritisation or reduction of compensation).
This includes, for example, the question of whether a fisher who can no longer catch
fish in a certain body of water is awarded compensation for the loss of income. If this is
the case, then the question remains whether this loss will be financially compensated and,if so, how exactly the amount of compensation will be calculated. However, the fisher may
alternatively, or additionally, be granted the right to fish in another water.

Part III. Conclusion
The notion of environmental damage is not new but there is no precise definition for theterm environmental damage. We have seen that recovery of the costs of remediation ofenvironmental damage depends on a large number of conditions that must be met. These
conditions are defined by indeterminate legal terms, which in turn must be interpreted bynational courts. While the competent court will probably have great discretion in doing so,unless the court is composed of appropriate specialists, it will probably apply a degree ofdeference when assessing measures taken by competent authorities. In its interpretationof the indeterminate legal terms, numerous considerations will be taken into account andmay influence whether the new heads of environmental damage will ultimately beinterpreted narrowly or broadly. This means that unequal applications between countries
are all but assured. This fact is somewhat offset by the fact that, as a general principle, in
the Revised Paris Convention and in the Revised Vienna Convention, only the competentcourt of the state in whose territory the nuclear incident occurs has jurisdiction over allcompensation and remediation claims arising from the incident. So, the sameconsiderations will apply to all victims of a given nuclear incident who are entitled to claim
compensation or remediation on the basis of the Conventions. Accordingly, countries cancomply with the principle of equal treatment of victims.

205. Revised Paris Convention, supra note 6, Article 1(a)(vii); Revised Vienna Convention, supranote 5, Article I(1)(k); and CSC, supra note 12, Article I(f).
206. Revised Paris Convention, supra note 6, Article 11; Revised Vienna Convention, supranote 5, Article VIII; and CSC, supra note 12, Article III (2)(a).
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Nuclear fusion: Legal aspects
by Wolfram Tonhauser and Karoly Tamas Olajos*

I.

Background
Energy produced by nuclear fusion devices promises many advantages and, although thesedevices are still on the horizon in terms of commercial deployment and needs significant
engineering and materials advances, 1 nuclear fusion has been for many years – andremains – the most promising long-term solution for the world’s energy needs withoutcarbon dioxide pollution. 2 It does not emit carbon dioxide or other greenhouse gases into
the atmosphere, so when fully developed, fusion energy can be the most powerful tool tomitigate climate change. 3
According to the International Atomic Energy Agency’s (IAEA) Fusion Device Information
System, at the time of writing, there are more than 130 experimental fusion devices andtesting facilities in operation, under construction or being planned, and a dozen
demonstration plant or pilot plant designs under development. 4 Controlled nuclear fusionand plasma physics research is currently carried out in more than 50 countries,5 with theworld’s most advanced and largest fusion experiment in development at ITER in Saint-Paullez-Durance, France. 6 Fusion has also attracted significant venture capital investment in

*

1.
2.
3.
4.
5.
6.

Wolfram Tonhauser is former Director and Head of the Nuclear and Treaty Law Section in
the Office of Legal Affairs of the International Atomic Energy Agency (IAEA). He is amember of the Board of Management of the International Nuclear Law Association (INLA)
and is the Chairperson of the International Group of Legal Experts on Fusion Energy(FELEX). He is also a Visiting Research Professor at the National University of Singapore.
Karoly Tamas Olajos is the Leader of the ITER Site & Buildings Legal Affairs Group of Fusion
for Energy. He is the Chairperson of INLA Working Group 8 on Nuclear Fusion and is also
the Secretary of the Fusion for Energy Contracting Professionals Roundtable and of FELEX.
The views expressed herein are those of the authors only.
See House of Commons, Science, Innovation and Technology Committee (2023), Delivering
nuclear power – Eighth Report of Session 2022-23, Doc. HC 626, House of Commons, London,
p. 58.
See IAEA (2023), IAEA World Fusion Outlook 2023 – Fusion Energy: Present and Future, 1st ed.,
IAEA, Vienna, p. 9.
See Barbarino, M. (2023), “Fusion Technology Concepts”, slideshow presented at the at theInternational School of Nuclear Law, OECD Nuclear Energy Agency (NEA) and University ofMontpellier, SaintPaul-lez-Durance, France, 25 August 2023.
IAEA (n. d.), “FusDIS: Fusion Device Information System”, IAEA, https://nucleus.iaea.org/
sites/fusionportal/Pages/FusDIS.aspx (accessed 26 Apr. 2024).
Ibid.
With seven international members (the People’s Republic of China, the European Union,
India, Japan, Korea, the Russian Federation and the United States), the International
Thermonuclear Experimental Reactor (ITER) project is based on the tokamak concept(using a device that confines plasma through a magnetic field). It is designed to achieve a
fusion power gain of at least 10-fold and produce 500 megawatts (MW) of fusion powerfrom 50 MW of input heating power. It will also test key technologies necessary for a fusion
pilot plant. See ITER International Fusion Energy Organization (ITER Organization) (n. d.),“What will ITER do?”, www.iter.org/sci/Goals (accessed 26 Apr. 2024).

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recent years around the globe. 7 In the United States (US) alone, there are approximately
25 private companies pursuing fusion technology.8 While the inclusion of fusion energy inthe power generation mix still may be some time away, the commercial investment starts
now, which in turn requires predictable legal frameworks. It is therefore timely to take stockand consider how fusion is currently addressed both from an international and national legal
perspective. 9II.

Legal frameworks
A. Nuclear safety
It is safe to say that because fusion is a self-limiting process, the hazards associated with
future fusion power plants are not comparable with those of large traditional fission-based
power plants. 10 The main radiological hazards from a fusion energy system derive fromthe inventories of radioactive material at the site and the radiation produced during
operation. 11 The main radiological hazard to the public will be the ionising radiation
coming from tritium and materials activated during the fusion process. 12

1. The Convention on Nuclear Safety (CNS) 13
One of the key elements of the international nuclear safety legal framework is the CNS. Its
objectives are “to achieve and maintain a high level of nuclear safety worldwide, […] toestablish and maintain effective defences in nuclear installations against potential
radiological hazards in order to protect individuals, society and the environment fromharmful effects of ionising radiation from such installations, [and] to prevent accidents
with radiological consequences and to mitigate such consequences should they occur”.14
The CNS requires contracting parties operating nuclear installations to maintain a highlevel of safety by establishing fundamental safety principles to which states must adhere.15
It defines a “nuclear installation” as “any land-based civil nuclear power plant” for the
purpose of the CNS, 16 leaving the question of the technology open. The definition therefore
appears to be sufficiently broad as to include future nuclear fusion power plants within thescope of application of the CNS. Under the CNS, a “nuclear installation”, however, “ceases
to be a nuclear installation when all nuclear fuel elements have been removed permanently
from the reactor core”. 17 While the term “nuclear fuel elements” is not defined under the
CNS, nuclear fuel is commonly understood as fissionable nuclear material, and this in turn

7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.

58

Fusion Industry Association (2023), The Global Fusion Industry in 2023 – Fusion Companies
Survey by the Fusion Industry Association, Fusion Industry Association, Washington, p. 3.
Ibid., p. 4.
See Tonhauser, W. (2023), “It is Time to Accelerate the Regulation of Fusion Technology –Next Steps”, presentation at the Fusion for Energy Contracting Professionals Roundtable,
Fusion for Energy, Saint-Paul-lez-Durance, France, 26-28 June 2023.
See Forbes, S. (2022), “The Regulatory Journey for Fusion Power Plant”, slideshow presented
at the Fusion for Energy Contracting Professionals Roundtable, Fusion for Energy, Aix-enProvence, France, 7-9 June 2022.
Ibid.
Ibid.
Convention on Nuclear Safety (1994), IAEA Doc. INFCIRC/449, 1963 UNTS 293, entered into
force 24 Oct. 1996 (CNS).
Ibid., Article 1, (i)-(iii).
Ibid., Preamble (viii).
Ibid., Article 2(i).
Ibid., (emphasis added).
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suggests – and was certainly the intention of the drafters at the time – that the CNS is only
meant to apply to nuclear fission power plants. 18
It is important to recall in this context, however, that, in view of the safety objectivesof the CNS, the contracting parties agreed already in 2015 on the voluntary reporting of thesafety of other types of civilian nuclear power reactors. In particular, contracting parties
started to report on research reactors in view of the non-binding nature and lack of peer
review under the corresponding Code of Conduct. 19 Given that the contracting parties are
the “masters” of the CNS, they may take a similar approach with respect to fusion“reactors”. 20 Up to now, however, the contracting parties have not formally considered any
fusion facility or activity to be within the scope of the CNS.

2. The Joint Convention on the Safety of Spent Fuel Management and on the Safety ofRadioactive Waste Management (Joint Convention) 21
Another important consideration is the safe management of radioactive waste and thepossible application of the Joint Convention. While fission power plants generateconsiderable amounts of long-lived radioactive waste, a fusion device produces helium,
which is an inert gas, and tritium (the half-life of which is short and is used only in low
amounts, so, unlike long-lived radioactive nuclei, cannot produce any serious danger).22
Under the Joint Convention, radioactive waste is defined as “radioactive material ingaseous, liquid or solid form for which no further use is foreseen by the contracting party
or by a natural or legal person whose decision is accepted by the contracting party, andwhich is controlled as radioactive waste by a regulatory body under the legislative andregulatory framework of the contracting party”. 23 Hence, the definition of radioactive waste
under the Joint Convention appears to be broad enough to cover fusion facilities andrelated radioactive waste management activities, both in terms of tritium and in terms ofwaste activated by the operation of the fusion device. 24 However, until now, the contracting

18.

19.
20.

21.
22.
23.
24.

While it may be doubtful that the permanent removal of all tritium breeding blankets froma tritium-fuelled fusion power plant qualifies as permanent removal of nuclear fuelelements from the reactor core, tritium breeding blankets are indeed components that
produce fusion fuel in the core of a fusion power plant.
See IAEA (2015), “Guidelines Regarding National Reports Under the Convention on Nuclear
Safety”, IAEA Doc. INFCIRC/572/Rev.5, p. 19; and IAEA (2006), Code of Conduct on the Safety of
Research Reactors, IAEA Doc. IAEA/CODEOC/RR/2006, IAEA, Vienna.
The fact that as part of the implementation of their obligations under the CNS, Euratom
and France regularly report, in accordance with Article 5 of the CNS, on fusion researchand development (R&D) results and ITER as “nuclear research and training activities” andas a “research reactor”, respectively, may suggest that contracting parties to the CNS may
be willing to add fusion facilities to their exchanges during review meetings. See General
Secretariat of the Council of the European Union (2022), “European Atomic Energy
Community Report on the implementation of the obligations under the Convention on
Nuclear Safety – 8th and 9th Joint Review Meeting of Contracting Parties to the Convention
on Nuclear Safety (CNS), Vienna, 20-31 March 2023”, available at: https://data.consilium.
europa.eu/doc/document/ST-10821-2022-INIT/en/pdf (accessed 26 Apr. 2024), p. 46. See
also Autorité de Sûreté Nucléaire (ASN) (2019), Convention on Nuclear Safety, Eighth National
Report for the 2020 Review Meeting, ASN, available at: www.french-nuclear-safety.fr/asninforms/news-releases/french-national-report-for-the-review-meeting-of-theconvention-on-nuclear-safety-2020 (accessed 26 Apr. 2024), pp. 9, 10, 22, 29, 34-35, 81-83.
Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive
Waste Management (1997), IAEA Doc. INFCIRC/546, 2153 UNTS 303, 357, entered into force
18 June 2001 (Joint Convention).
See Forbes, S. (2022), supra note 10.
Joint Convention, supra note 21, Article 2(h).
See Johnson, P.L. (2023), “Fusion and Nuclear Law and: A New Legal Paradigm?”, in K.T.
Olajos (ed.), Fusion for Energy Contracting Professionals Roundtable Proceedings, Fusion for
Energy, Barcelona, p. 33.

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parties to the Joint Convention have not discussed fusion facilities and related radioactive
waste management activities in relation to the Joint Convention peer review meetings. 25

B. Emergency preparedness and response
While the CNS and the Joint Convention cover some aspects of emergency preparedness
and response (EPR), such as requiring the establishment of on-site and off-site emergency
plans, there is also a need to have a closer look at the directly relevant international EPR
conventions and their underlying operational systems. 26
The facilities and activities listed in Article 1 of the Convention on Early Notification ofa Nuclear Accident (Notification Convention) to which the Notification Convention applies– notably by reference to “any nuclear reactor” – seem broad enough to cover fusion
facilities. 27 At the same time, however, the Notification Convention stipulates that it
applies only to an accident “from which a release of radioactive material occurs or is likely
to occur and which has resulted or may result in an international transboundary release that could
be of radiological safety significance for another State”, a scenario which appears to be unlikely
in respect of accidents or incidents involving fusion facilities. 28
The Convention on Assistance in the Case of a Nuclear Accident or Radiological
Emergency does not contain a definition of a “nuclear accident” or “radiological emergency”
and therefore appears to be broad enough to apply to potential accidents from fusion
facilities.29 Assistance under this convention would thus be available also in respect of aradiological emergency at a fusion facility. The same considerations apply to the associatedoperational international EPR system, which is based on and has been developed in supportof these two conventions. 30

C. Nuclear security
Regarding nuclear security, the Convention on the Physical Protection of Nuclear Material31
and its Amendment 32 apply to the physical protection of “nuclear facilities” and of “nuclear
material” used for peaceful purposes, amongst others, in domestic use, storage andtransport, and provide for the criminalisation of offences in this regard. The scope of
application of the CPPNM and its Amendment, however, is limited to such facilities andmaterial and therefore excludes tritium, fusion facilities and other radioactive material,
which may be generated in such facilities. 33
At the same time, the International Convention for the Suppression of Acts of Nuclear
Terrorism, 34 adopted under the auspices of the United Nations, is broader in scope thanthe CPPNM and its Amendment. It applies to “all radioactive material”, including nuclear

25.
26.
27.
28.
29.
30.
31.
32.
33.
34.

60

Ibid.
CNS, supra note 13, Article 16; Joint Convention, supra note 21, Article 25.
Convention on Early Notification of a Nuclear Accident (1986), IAEA Doc. INFCIRC/335,
1439 UNTS 275, entered into force 27 Oct. 1986, Article 1.2.
Ibid., Article 1.1 (emphasis added).
Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency(1986), IAEA Doc. INFCIRC/336, 1457 UNTS 133, entered into force 26 Feb. 1987, Articles 1.1
and 2.1.
See IAEA (n. d.), “Emergency notification and reporting”, IAEA, www.iaea.org/topics/
notification-and-reporting (accessed 12 Dec. 2023).
Convention on the Physical Protection of Nuclear Material (1980), IAEA Doc. INFCIRC/274
Rev. 1, 1456 UNTS 124, entered into force 8 Feb. 1987 (CPPNM).
Amendment to the Convention on the Physical Protection of Nuclear Material (2005), IAEA
Doc. INFCIRC/274/Rev.1/Mod.1, 3132 UNTS A-24631, entered into force 8 May 2016.
See Olajos, K.T. (2016), “International Regulation of Nuclear Fusion”, in Nuclear Law
Association of India (NLA) and INLA (eds.), XXII Nuclear Inter Jura Congress, The Future of Nuclear
Law: Addressing Societal, Environmental and Business Expectations, NLA, New Delhi, pp. 12-13.
International Convention for the Suppression of Acts of Nuclear Terrorism (2005),
2445 UNTS 89, 137, entered into force 7 July 2007 (Nuclear Terrorism Convention).
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material 35 and, while the Nuclear Terrorism Convention does not require contracting
parties to establish and implement national physical protection regimes for fusion
facilities, it does require them to criminalise acts involving radioactive material, which inturn would include acts that may be connected to fusion energy systems. 36
In contrast to the CPPNM and its Amendment, the guidance documents in the IAEA
Nuclear Security Series not only cover nuclear material and facilities, but also radioactive
material and associated facilities. They are based on the principle of technology neutrality
and are, therefore, generally applicable to future fusion power plants. 37

D. Nuclear fusion materials control
The focus of the IAEA safeguards agreements – whether comprehensive safeguards
agreements, voluntary offer agreements or item-specific safeguards agreements – is on
nuclear material, i.e. source or special fissionable material as defined in Article XX.3 of the
IAEA Statute, 38 and fission-related technology. Tritium and deuterium are not defined as
nuclear material under the IAEA’s safeguards agreements and, from this perspective,
fusion facilities do not appear to be subject to IAEA safeguards measures.
However, while the proliferation risk in fusion is significantly lower than in fission
technologies, fusion activities do give rise to proliferation concerns due to the potential ofplutonium breeding, tritium circumvention, and the knowledge necessary to develop andoperate inertial confinement fusion technologies. 39 Consideration should therefore be
given to addressing such risks – however limited they might be – with a view to providing
assurances through the application of IAEA safeguards that fusion technology is not being
misused, and the question arises whether one should be so absolute about fusion activities
not being subject to IAEA safeguards.
In this context, it is important to bear in mind that the IAEA’s safeguards activities are
not limited – either under the comprehensive safeguards agreements or additional
protocols – to sites where nuclear material is located. 40 While detecting and deterring thediversion of nuclear material to nuclear weapons or other nuclear explosive devices is thefocus of comprehensive safeguards agreements, it can be argued that this does not imply
that the application of safeguards is limited to such material. Indeed, much of the Model
Additional Protocol relates to activities and locations that do not involve the direct use orpresence of nuclear material. 41 Thus, it may be misleading to conclude that because tritium
is not defined as nuclear material, safeguards do not apply to fusion. An argument couldin fact be made that, since a “reactor” is defined as a facility under the comprehensive
safeguards agreements and fusion facilities are also referred to as “reactors”, such facilities
could also be considered “facilities” under the comprehensive safeguards agreements and,hence, be subject to certain safeguards procedures. 42 If there is a potential for plutonium

35.
36.
37.
38.
39.
40.
41.
42.

Ibid., Article 1.1.
See Olajos, K.T. (2016), supra note 33.
See IAEA (n.d.), “IAEA Nuclear Security Series”, IAEA, www.iaea.org/resources/nuclearsecurity-series (accessed 26 Apr. 2024).
Statute of the International Atomic Energy Agency (1956), 276 UNTS 3, 38, entered into
force 29 July 1957 (IAEA Statute).
See Sauter, P. (2022), “Nuclear Fusion and its Inherent Risks of Nuclear Weapon
Proliferation”, slideshow presented at the Fusion for Energy Contracting Professionals
Roundtable, Fusion for Energy, Saint-Paul-lez-Durance, France, 26-28 June 2023.
IAEA (1972), “The Structure and Content of Agreements between the Agency and Statesrequired in connection with the Treaty on the Non-Proliferation of Nuclear Weapons”,
IAEA Doc. INFCIRC/153 (Corrected), IAEA, Vienna.
IAEA (1997), “Model Protocol Additional to the Agreement(s) between State(s) and theInternational Atomic Energy Agency for the Application of Safeguards”, IAEA Doc.
INFCIRC/540 (Corrected), IAEA, Vienna (Model Additional Protocol).
For example, ITER is termed as the International Thermonuclear Experimental Reactor;
and the terms of “fusion reactor”, “fusion machine” or “fusion device” to describe a fusion
facility are used interchangeably in the literature to date.

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breeding at fusion facilities, there is even more support for the conclusion that such
facilities should be treated as subject to safeguards under the comprehensive safeguards
agreements, regardless of whether the proliferation risk is lower with fusion activities thanwith fission activities.
Also, with respect to tritium, the Annexes to the Model Additional Protocol could be
amended to include the production of tritium. 43 Including procedures for the safeguardingof tritium in subsidiary arrangements might be an effective approach to address its
significance without changing the definition of nuclear material. 44 Further, the idea of
either a new protocol for the safeguarding of tritium or for covering tritium in a new typeof safeguards agreement concluded under Article III.A.5 of the IAEA Statute might be an
option. However, pending the implementation of any of these approaches to thesafeguarding of fusion activities, strengthening export control measures that apply,
amongst others, to deuterium, tritium, lithium 6, and laser technologies, for example,
through updating the export control requirements of the Nuclear Suppliers Group 45 may
be a pragmatic and efficient intermediate approach. 46

E. Nuclear fusion liability
Regarding nuclear liability, fusion facilities are not, at present, covered under either the
Vienna or the Paris nuclear liability regimes. 47 An important question is whether theyshould be included in the scope of the nuclear liability conventions or whether there is aneed to adopt a specific regime, either at the international or at the national level, to deal
with liability for damage caused by nuclear fusion facilities and related activities. 48 So far,
it is considered that the low risk and limited transboundary impact posed by fusion
facilities would not justify the application of the special nuclear liability regime. 49 The
hazard posed by fusion facilities is of a different magnitude than that posed by large fission
reactors and is more akin to the hazard posed by a large chemical plant or by uranium
mining and milling operations, which fall outside the scope of the conventions. 50

43.

44.
45.
46.
47.

48.
49.
50.

62

For example, tritium breeding and related activities could be listed in Annex I to bereported under Article 2.a.(iv) of the Model Additional Protocol while tritium could be listed
in Annex II, the export and import of which ought to be reported under Article 2.a.(ix) of
the Model Additional Protocol.
See Olajos, K.T. (2016), supra note 33, p. 13.
See Nuclear Suppliers Group (n.d.), “Guidelines”, NSG, https://nuclearsuppliersgroup.org/
en/guidelines (accessed 26 Apr. 2024).
See Sauter, P. (2023), “Nuclear Proliferation Concerns for Fusion Technologies: Is Export
Control a Solution?”, slideshow presented at the Fusion for Energy Contracting Professionals
Roundtable, Fusion for Energy, Saint-Paul-lez-Durance, France, 26-28 June 2023.
Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960, as
amended by the Additional Protocol of 28 January 1964, by the Protocol of 16 November
1982, and by the Protocol of 12 February 2004, entered into force 1 Jan. 2022, unofficial
consolidated text in NEA (2022), “Paris Convention on Third Party Liability in the Field of
Nuclear Energy, Unofficial Consolidated Text And Exposé Des Motifs”, OECD Publishing,Paris; Vienna Convention on Civil Liability for Nuclear Damage (1963), IAEA Doc.
INFCIRC/500, 1063 UNTS 266, entered into force 12 Nov. 1977; the Protocol to Amend the1963 Vienna Convention on Civil Liability for Nuclear Damage (1997), 2241 UNTS 270,
entered into force 24 Oct. 2003; Convention on Supplementary Compensation for Nuclear
Damage (1997), IAEA Doc. INFCIRC/567, 3038 UNTS 41, entered into force 15 Apr. 2015.
See Portier, C. (2022), “Nuclear Liability and Fusion Facilities”, slideshow presented at the
Fusion for Energy Contracting Professionals Roundtable, Fusion for Energy, Aix-enProvence, France, 7-9 June 2022.
See IAEA (2020), The 1997 Vienna Convention on Civil Liability for Nuclear Damage and the1997 Convention on Supplementary Compensation for Nuclear Damage – Explanatory Texts, IAEA
International Law Series No. 3 (Rev. 2), IAEA Doc. STI/PUB/1906, IAEA, Vienna, pp. 10, 27.
See Tonhauser, W. (2022), “Fusion, Nuclear Law and the IAEA”, keynote delivered at the
Fusion for Energy Contracting Professionals Roundtable, Fusion for Energy, Aix-enProvence, France, 7-9 June 2022.
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Concerns were also expressed that the inclusion of fusion facilities within the scope ofthe existing nuclear liability conventions might lead the public to believe that they posed
hazards of a similar nature to large fission reactors. 51 At the same time, it was noted thatthe existing nuclear liability regimes do cover facilities of a similarly low level of hazard as
fusion facilities, for example research reactors or radioactive waste storage facilities, andthat the nuclear liability system offered greater protection to victims than general tort
law. 52 However, no definitive conclusion has been reached on this issue so far and,
therefore, at least for the time being and absent specific applicable national legislation,
general tort law would apply to nuclear fusion installations. 53

F. National regulation
At the national level in most countries, the regulatory body for nuclear fission currently
also covers fusion. This is the case in Canada, the People’s Republic of China (China),
France, Germany, Italy, Japan, and Korea, for instance. 54 The reason for this approach isoften that the regulator covers all radioactive materials and all radiological hazards, suchas sources used in industry or research and x-ray generators in hospitals. 55 ITER is an
example of a fusion facility that was expressly agreed, by the ITER members, to fall within
the French (primarily fission-based) nuclear regulatory framework, 56 being regulated by
ASN, the French nuclear regulatory body. 57 However, this is not entirely the case in someother countries, such as the United Kingdom, where the government recently decided that
future fusion energy facilities will continue to be regulated by the Environment Agency andthe Health & Safety Executive as a “radioactive substance” activity, whereas fission power
plants continue to be covered by the Office for Nuclear Regulation. 58 In April 2023, the US
Nuclear Regulatory Commission (NRC) decided that fusion energy would be regulated in
the United States by the NRC (and the Agreement States authorised under federal law to
do so) under the same regulatory regime as radioactive materials and sources, which inturn would separate the regulatory oversight of fusion from the regime that regulates
nuclear fission energy. 59

51.
52.
53.

54.
55.
56.
57.

58.

59.

See de Boissieu, E. (2023), “The Paris Convention and Fusion”, slideshow presented at the
Fusion for Energy Contracting Professionals Roundtable, Fusion for Energy, Saint-Paul-lezDurance, France, 26-28 June 2023.
See Tonhauser, W. (2022), supra note 50. See also Portier, C. (2022), supra note 48.
See de Boissieu, E. (2022), “Nuclear Third-Party Liability Conventions and Fusion”, slideshow
presented at the Fusion for Energy Contracting Professionals Roundtable, Fusion for Energy,
Aix-en-Provence, France, 7-9 June 2022. See also Tyler, A. (2023), “Export Control and Nuclear
Liability at ITER”, slideshow presented at the Fusion for Energy Contracting Professionals
Roundtable, Fusion for Energy, Saint-Paul-lez-Durance, France, 26-28 June 2023.
See Tonhauser, W. (2022), supra note 50.
Ibid.
Agreement on the Establishment of the ITER International Fusion Energy Organization for
the Joint Implementation of the ITER Project (2006), Official Journal of the European Union (OJ)
L 358 (16 Dec. 2006) entered into force 24 Oct. 2007, p. 62, Article 14.
ITER in France is the first fusion installation for which, due to its radioactive (tritium andradioactive-waste) inventory qualifying it as a laboratory-type basic nuclear installation, acomplete safety case had to be prepared under the scrutiny of a nuclear regulatory bodyin formal licensing. See Articles 2.2 and 2.4, Décret n°2007-830 du 11 mai 2007 relatif à lanomenclature des installations nucléaires de base (JORF du 12 mai 2007, p. 249), which are today
codified in Articles R593-2 II 2 and R593-2 III 1 of the Code de l’environnement ; Olajos, K.T.
(2016), supra note 33, p. 11.
See Energy Act 2023, c 52, s 156; Department for Business, Energy and Industrial Strategy(2022), Towards Fusion Energy – The UK Government’s response to the consultation on its proposals
for a regulatory framework for fusion energy, Controller of Her Majesty’s Stationery Office,London.
See Memorandum to D. Dorman, NRC Executive Director for Operations, from B. Clark, NRC
Secretary (13 Apr. 2023), “Staff Requirements – SECY-23-0001 – Options for Licensing andRegulating Fusion Energy Systems” (NRC Agencywide Documents Access and Management
System Doc. ML23103A449).

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The difference in approaches between the various countries seems to be based on theinherent differences between fusion energy systems and nuclear fission facilities and theposition of some governments that it would not be appropriate to utilise the regulatory
framework and approach for fission given the differences in underlying risk and maturityof fusion technology. 60 Moreover, trying to regulate fusion in the same way as fission may
impact its social acceptance. A fission approach to its regulation could overburden fusion
at a very early stage of its commercialisation. 61 Conversely, fission-based nuclear power
plants have a long history of development and operational experience, which should not
be lost. 62 The most promising approach may be to build on the many decades of experiencethat regulators have with fission and make sure that all applicable knowledge istransferred to those that regulate fusion; in this way, an efficient and effective regulatory
fusion framework could be developed. 63

G. IAEA Safety Standards and Nuclear Security Series
In view of the divergence in regulatory approaches to fusion and the consequential lack ofpotential harmonisation in this field, 64 the question of whether and to what extent the
IAEA safety standards and nuclear security guidance documents are applicable to fusion
facilities becomes even more relevant. At this point, there are no safety standards or
security guidance documents that have been developed to specifically apply to fusion. 65
While the IAEA is in the process of developing such specific standards and guidance,66
most of the IAEA standards are applicable to any endeavour involving radiation exposure,including fusion facilities. 67 This is particularly true for the IAEA Fundamental Safety

60.
61.
62.
63.
64.

65.
66.

67.

64

See Wagner, R. (2023), “IAEA Activities on the Applicability of Nuclear Regulations to Fusion
Facilities”, slideshow presented at the Fusion for Energy Contracting Professionals
Roundtable, Fusion for Energy, Saint-Paul-lez-Durance, France, 26-28 June 2023.
See Tonhauser, W. (2022), supra note 50.
See Calle Vives, P. (2022), “IAEA Activities on Fusion Safety and Regulation”, slideshow
presented at the Fusion for Energy Contracting Professionals Roundtable, Fusion for
Energy, Aix-en-Provence, France, 7-9 June 2022.
See Olajos, K.T. (2022), “Towards an International Approach to Regulate Nuclear Fusion”,
slideshow presented at the First International Conference on Nuclear Law – The Global
Debate, IAEA, Vienna, 25-29 April 2022.
See Calle Vives, P. (2022), supra note 62; Johnson, P.L. (2023), supra note 24, p. 37.
Nevertheless, the desire to harmonise legal and regulatory frameworks for fusion
technologies was re-confirmed by regulators and experts at the first IAEA Technical
Meeting on Fusion Design Safety and Regulation held on 23-25 October 2023. See Choi, G.
and D. Watson (2023), “IAEA hosts the First Meeting Focusing on Safety and Regulation of
Fusion”, IAEA, www.iaea.org/newscenter/news/iaea-hosts-the-first-meeting-focusing-onsafety-and-regulation-of-fusion (accessed 26 Apr. 2024).
Ibid. See also González, A.J. (2022), “Fusion: Do the IAEA Safety Standards Apply?”,slideshow presented at the First International Conference on Nuclear Law – The Global
Debate, IAEA, Vienna, 25-29 April 2022.
The IAEA is in the process of finalising an IAEA-TECDOC on the International Experience in
the Regulation of Fusion Facilities and another IAEA-TECDOC on the Experiences on Design
Safety and Safety Assessment for Fusion Facilities, which gather IAEA member states’
experiences. These IAEA-TECDOCs will be followed by fusion safety reports that will lay
down principles for safety and regulation. These safety reports will pave the way to fusion
safety standards in the second half of this decade that will serve as a framework for fusion
design safety, safety assessment and regulation. See IAEA (2023), “Technical Meeting on
Fusion Design Safety and Regulation”, Information Sheet, IAEA, available at: www.iaea.org/
sites/default/files/23/06/information_sheet_evt2102804.pdf (accessed 26 Apr. 2024), pp. 1-2.
See Tonhauser, W. (2023), “The Impact of IAEA Safety Standards and Security GuidanceDocuments on Procurement and Contracts”, presentation at the Fusion for Energy
Contracting Professionals Roundtable, Fusion for Energy, Saint-Paul-lez-Durance, France,
26-28 June 2023.
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Principles and the General Safety Requirements of the IAEA Safety Standards 68 and, as
mentioned above, the IAEA Nuclear Security Series, which are both based on the principleof technology neutrality and, therefore, cover both nuclear and radioactive material andassociated facilities. The IAEA Statute makes the IAEA safety standards binding on the
IAEA in relation to its own operations; 69 therefore, any state entering into an agreementwith the IAEA concerning IAEA assistance is required to comply with the requirements ofthe safety standards – and security guidance – that pertain to the activities covered by theagreement. Also, the IAEA safety standards and security guidance form the basis for all the
IAEA safety and security review services, such as the Integrated Regulatory Review Service,
the Operational Safety Assessment Review Team, the International Physical Protection
Advisory Service, and others. 70
As a last point, states will incorporate safety standards and security guidance
documents in one form or another in their respective legislation. 71 Some states formallyincorporate safety standards and security guidance documents into their national
legislation, while others directly use them to establish their respective national
regulations, and, in fact, all of them use safety standards as references for their review ofnational standards. 72

III.

Contracts and procurement
A. Technology and construction risks
Construction risk is intimately tied to technology risk 73 and, as the complexity of fusion
technologies is several orders of magnitude higher than the complexity of fission
technologies, 74 fusion power plants are expected to be one of the most capital-intensive
projects to be implemented, the final cost of which will largely depend on the construction
time and the weighted average capital cost applied. 75 Minimising overall project risk –essentially by reducing construction duration to contain costs – will therefore be a key
issue in fusion infrastructure construction. 76 While fusion infrastructure construction canbenefit from the lessons learnt from other first-of-a-kind nuclear projects, 77 fusion
infrastructure construction will likely have a long design, manufacturing and construction
time until fusion technology matures and replica projects are built to optimise design,

68.
69.
70.
71.
72.
73.
74.
75.
76.
77.

See González, A.J. (2022), supra note 65. See also IAEA (n.d.), “Safety Standards”, IAEA,
www.iaea.org/resources/safety-standards (accessed 26 Apr. 2024).
IAEA Statute, supra note 38, Article III.A.6,
See Tonhauser, W. (2023), supra note 67.
Ibid.
Ibid.
See Qureshi, A. and R. Msulwa (2023), “Structuring Fusion Infrastructure Projects”,
slideshow presented at the Fusion for Energy Contracting Professionals Roundtable, Fusion
for Energy, Saint-Paul-lez-Durance, France, 26-28 June 2023.
See Energy Committee of the Royal Swedish Academy of Sciences (2007), Statements on
Energy from Nuclear Fusion, Royal Swedish Academy of Sciences, Stockholm, p. 5.
See Olajos, K.T. (2022), supra note 63.
See Qureshi, A. and R. Msulwa (2023), supra note 73.
See Vaya Soler, A. (2022), “Effective Contractual Structures for Nuclear New Build: Key
Findings from the REDCOST Report”, slideshow presented at the Fusion for Energy
Contracting Professionals Roundtable, Fusion for Energy, Aix-en-Provence, France, 7-9 June
2022. These lessons learnt can be grouped in the categories of design maturity; effective
project management; stability and predictability of regulation; and multi-unit and series
effects. Other elements may be add-ons to reduce the cost of fusion infrastructure evenfurther via future design optimisation; technology and process innovation; re-examinationof regulatory interactions, and international harmonisation of licensing requirements, andcodes and standards.

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manufacturing and construction processes. 78 Indeed, fusion infrastructure construction
will remain mostly bespoke and built on location until fusion technology components canbecome modular and repeatable, bringing a huge accumulation of learning that can reduce
cost and time to construct. 79
While reducing the cost of key components through innovation will have the mostimpact on making fusion competitive, 80 the impact of regulation on contracts andprocurement strategies cannot be overstated. For example, instructions from the regulatory
body may deeply affect construction contract performance because, in certain jurisdictions,the regulatory body will play a key role in the engineering, procurement, construction andcommissioning process of fusion infrastructure81 given its responsibilities for developing,interpreting, and applying the regulatory requirements for fusion facilities.82

B. Fusion procurement and contracting
Reducing the cost of capital will require a risk-allocation and mitigation strategy that
contracts can formalise. 83 However, contracts – being risk-allocation documents – should
not be expected to manage a fusion infrastructure construction project. 84 The idea that all
risks can be allocated to the contractor will not likely be successful because allocation of arisk to a party with little or no control over the risk means that the risk will remain
unmanaged. 85 Therefore, the party most capable of managing and controlling a risk shouldbe allocated the risk. 86 In the case of most complex fusion technology development
projects, this will be the project owner. 87

78.
79.
80.
81.
82.

83.

84.
85.
86.
87.

66

See Flyvbjerg, B. and D. Gardner (2023), How Big Things Get Done – The Surprising Factors
Behind Every Successful Project, from Home Renovations to Space Exploration, MacMillan,
London, pp. 157-184.
See Flyvbjerg, B. (2021), “Make Megaprojects More Modular”, Harvard Business Review,
November-December 2021 Issue, Harvard Business Publishing, Boston, pp. 58-63.
See Olajos, K.T. (2022), “Changing the Perspective in Fusion R&D to Deliver the Promise of
Fusion Energy to All”, slideshow presented at the Fusion for Energy Contracting
Professionals Roundtable, Fusion for Energy, Aix-en-Provence, France, 7-9 June 2022.
See Giraud, S. (2023), “Managing Instructions of Regulatory Bodies under FIDIC Contracts”,
slideshow presented at the Fusion for Energy Contracting Professionals Roundtable, Fusion
for Energy, Saint-Paul-lez-Durance, France, 26-28 June 2023.
Therefore, the interface mechanism with the regulatory body, and the impact of aregulatory body’s instructions will need to be clearly described in the contract
documentation to ensure legal certainty. Certain standard forms suggest, in this respect,that regulatory bodies could become stakeholders in fusion infrastructure construction
contracts and would need to be consulted before certain decisions could be made.
See Makovsek, D. and A. Chao (2023), “Enabling Success of Megaprojects throughProcurement Strategy: the STEPS Method”, slideshow presented at the Fusion for Energy
Contracting Professionals Roundtable, Fusion for Energy, Saint-Paul-lez-Durance, France,
26-28 June 2023.
See Merrow, E. D. (2022), Contract Strategies for Major Projects – Mastering the Most Difficult
Element of Project Management, John Wiley & Sons, Inc., Hoboken, New Jersey, pp. 57-58.
Ibid, p. 222.
Ibid, p. 221.
See Chao, A. and A. Calmes (2023), “Updates on the FIDIC Collaborative Contract and Early
Contractor Involvement”, slideshow presented at the Fusion for Energy Contracting
Professionals Roundtable, Fusion for Energy, Saint-Paul-lez-Durance, France, 26-28 June
2023. Project owners can only choose a maximum of two objectives from the quality, time,and cost triangle.
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Even so, as supply chain requirements for fusion infrastructure construction are
already demanding, suppliers may not be expected to bear more risk than they canreasonably carry. 88 To guard against supply chain disruptions in fusion infrastructure
construction, commercial models that do not impose excessive risk on the supply chain
should be adopted. 89 The biggest asset of this “supplier-friendly” approach would be theability to empower involved parties to communicate transparently with one another,
thereby decreasing the likelihood of failure. 90 Decreasing delay is key for fusion
infrastructure construction, which will have no time for mistakes and will require
collaborative work and innovation in a highly complex environment. 91 Therefore, in
procurement for fusion infrastructure construction, the focus should be on the technicalapproach of the bidder rather than on the price alone. 92 Since price overruns are almost
universal in construction projects, the price offered in a tender has usually little impact on
the actual outturn cost for the project owner. 93 This is also why applying a guaranteedmaximum price would not be beneficial for fusion infrastructure construction because
fusion infrastructure construction involves a new technology. 94 A guaranteed maximum
price requirement is likely to lead to either fewer tenders or to excessive pricing. 95 Using a
structured, data-driven process to determine the best way to do a procurement andcontracting strategy, involving and engaging multiple disciplines, will be crucial. 96

C. Transforming the fusion supply chain
As the fusion supply chain will need to eventually produce up to one gigawatt of fusion
capacity a day, an ecosystem capable of supplying, delivering and maintaining the key
components will be required to initiate commercial fusion deployment. 97 A robust supply
chain of component manufacturers, technology vendors and advanced structural material

88.

89.
90.
91.

92.

93.
94.
95.
96.
97.

See Qureshi, A. and R. Msulwa (2023), supra note 73. Supply chain requirements include,
amongst others, manufacturing of specialised components and materials to tightspecifications, ensuring highest level of quality, continuous improvement, innovation andcompliance with safety standards, continuous dialogue and collaboration with owners,
suppliers, and the regulatory body, and providing scale and production capacity whileachieving cost efficiency and scalability.
Ibid. Vertical integration also could limit the transaction costs, so there are certain
scenarios where vertical integration could substitute contractual relationships.
See Chao, A. and A. Calmes (2023), supra note 87.
See Olajos, K.T. (2023), “Legal innovations to fulfil the promise of fusion energy”, slideshow
presented at the Fusion for Energy Contracting Professionals Roundtable, Fusion for
Energy, Saint-Paul-lez-Durance, France, 26-28 June 2023. Indeed, the nature of fusion
technology development with first-of-a-kind procurements imposes uncertainties andinfluences cost and schedule in an environment where quality is not to be compromised.
See Chao, A. and D. Aranyi (2023), “Potential Set Up of an International Procurement
Programme for Fusion Technology Development”, slideshow presented at the Fusion for
Energy Contracting Professionals Roundtable, Fusion for Energy, Saint-Paul-lez-Durance,
France, 26-28 June 2023.
See Hebsgaard Muff, S. (2023), “Early Contractor Involvement and Long-Term
Collaboration”, slideshow presented at the Fusion for Energy Contracting Professionals
Roundtable, Fusion for Energy, Saint-Paul-lez-Durance, France, 26-28 June 2023.
Ibid.
OECD (2023), Construction Risk Management in Infrastructure Procurement: The Loss of Appetite
for Fixed-Price Contracts – Summary of the expert meeting held on 17 May 2023 at the OECD, Paris(France) and online, OECD Publishing, Paris, p. 2.
See Makovsek, D. and A. Chao (2023), supra note 83.
See Olajos, K.T. (2023), supra note 91. See also Theory to Reality: The Limitless Potential of Fusion
Energy: Hearing Before the House Committee on Science, Space, and Technology, Energy
Subcommittee, 117th Congress, pp. 28-40 (2023) (written testimony of David Kirtley,
Co-Founder and Chief Executive Officer, Helion Energy).

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suppliers that will have to comply with stringent quality requirements to achieve therequired precision of fusion technologies will be a necessity. 98
In this respect, business as usual is not an alternative for developing a competitive
industrial base for the future fusion economy when the ambitious goal of commercial
fusion power requires timely development of co-ordinated and integrated technicalcapabilities beyond national borders. 99 Yet, splitting industrial contracts – and theknowledge that accompanies them – among various stakeholders in fusion infrastructure
construction does not favour, in general, industry and, in particular, knowledge
development objectives. 100 While the linear policy would be to foster open competition tosecure best-value-for-money procurement outcomes, it seems idealistic to chasecompetition with austere cost containment objectives in a market that is limited andwhere technical monopolies exist, as it presumes the existence of an efficient market anda mature industry. This does not exist just yet for fusion technologies. 101 It therefore seems
that, under an arm’s length approach to the nascent industry, there would be no long-term
profit-generating business opportunity available for the industry. 102

D. Collaborative and agile approaches 103
Complex environments in fusion infrastructure construction will necessitate amultidisciplinary approach, trust and collaboration between stakeholders, and a willingness
to fulfil the project objectives first, which the chosen contract form will need to underpin. 104
While good contract administration practices in linear contracts can lead tocollaboration, they may not be sufficient; therefore, collaborative contracts may be needed
for complex fusion infrastructure construction to provide goal-directed project
management tools that increase the chance of collaboration and eliminate the linear path
to adverse behaviour. 105 To ensure alignment between project owners, contractors,
engineers and the supply chain, a collaborative team needs to be in place. 106 In addition,
the contract should be prepared to allow for the adoption of parts of the contract in the
supply chain contracts (as if they were building blocks) to ensure contractual alignment,

98.
99.
100.
101.
102.
103.

104.
105.

106.

68

See Olajos, K.T. (2023), “Innovative Contracting to Devise a more Human Centred ITER
Project”, slideshow presented at the King’s College Open Forum Conference, King’s College,
London, 23 February 2023.
See Olajos, K.T. (2022), “Delivering Megaprojects in this Decade of Action – The ITER
project”, keynote delivered at the Official FIDIC International Contract Users’ Conference
2022, International Federation of Consulting Engineers, London, 29-30 November 2022.
Ibid.
Ibid.
Ibid.
Procurement of a collaborative contract, which implies procurement of a process with aseries of foreseen review clauses instead of contracting for a specific design or a product,
is possible under the EU Procurement Directives, e.g. Directive 2014/24/EC of the European
Parliament and of the Council of 26 February 2014 on public procurement and repealing
Directive 2004/18/EC, OJ L 94 (28 Mar. 2014), p. 65. Similarly, to ensure compliance withprocurement regulations, the agile approach used in the project will need to be specified
in the tender documents, but procurement regulations do not hinder agile approaches. See
Vornicu, R. (2022), “Collaborative Construction Standard Contract Forms and Improved
Value: FAC-1 and TAC-1”, slideshow presented at the Fusion for Energy Contracting
Professionals Roundtable, Fusion for Energy, Aix-en-Provence, France, 7-9 June 2022. See
also Spassova, A. (2023), “Innovative Project Delivery with FIDIC Contracts”, slideshow
presented at the Fusion for Energy Contracting Professionals Roundtable, Fusion for
Energy, Saint-Paul-lez-Durance, France, 26-28 June 2023.
See Hebsgaard Muff, S. (2023), supra note 93.
See Chao, A. and A. Calmes (2023), supra note 87. For goal-directed project management,
see also Assad, M. G. and G. P. J. Pelser (1983), “Project Management: A Goal-Directed
Approach”, Project Management Quarterly, Vol. 14, Issue 2, Project Management Institute,Drexel Hill, pp. 49-58.
Ibid.
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information flow, and integration of work streams between supply chain parties; however,they may need to include different pricing provisions. 107
Contracts in fusion infrastructure megaprojects involving R&D and first-of-a-kindcomponents, prone to modifications, will also require agility during contract
implementation. 108 In this respect, cost transparency in collaborative contracts entails that
contractors need to present open cost calculations during the design phase, where thedesign and price are fixed on an ongoing basis. 109 These calculations can then be the basisof a dialogue on price, whereas, to encourage openness, project owners maintain theoption of resorting to market testing. 110

E. Contractual liability and insurance
A strict control of who does what during the design phase in fusion infrastructure
construction and the potential for liability in making proposals and suggestions may
discourage the free exchange of ideas. 111 It may also be difficult to establish exactly who
did what at a later stage and thus be difficult to decide who is responsible for rectifying
any defect. 112 In order to address these issues, the design responsibility and contractual
liability of each party may need to be clearly defined, independently of who actually madethe effort. 113
Clear lines of liability should be combined with the establishment of a joint
construction all risk insurance policy for the fusion infrastructure construction that the
project owner would take out to co-insure all contractors and supply chain parties onsite,
without any recourse from the insurers. 114 This would help to eliminate disputes at thefusion infrastructure construction site. 115
At the same time, the early involvement of insurers in setting up the fusion
infrastructure construction may be essential to secure insurance coverage, because whenit comes to first-of-a-kind fusion facilities or components, the insurers will not be able tobase their assessment on risk and, more importantly, there will be no volume of similar

107. Ibid. Therefore, fusion infrastructure construction may need a standard form of contractfor its specific needs to create a level-playing field in the supply chain, the essential
elements of which should be associated with the process of fusion infrastructure
construction delivery more than the legal language. See also Hebsgaard Muff, S. (2023),
supra note 93.
108. See Olajos, K.T. (2018), “ITER – An International Project for the Construction of a First-of-aKind Fusion Nuclear Installation Licensed in France” in L. Klee (ed.), International
Construction Contract Law, 2nd ed., John Wiley & Sons Ltd., Hoboken, New Jersey, pp. 405-423.
Agile approaches could contribute to successful fusion infrastructure delivery because
fusion technology is a new nuclear technology that still requires a lot of R&D; it involves
exploratory, not-done-before, high-quality work produced by many problem-solving
engineers, has high rates of change, and has unclear requirements with uncertainty
centred on fusion energy’s technical feasibility and performance.
109. See Hebsgaard Muff, S. (2023), supra note 93.
110. Ibid. While working iteratively in the construction phase would not work where costs
involved in amending an iteration are high, the design phase where costs remaincomparatively low could benefit from agile approaches. For example, while introducing
intermediate milestones in a design phase is not new, the linear approach has been to basethese on a certain level of design completion rather than the achievement of overall
objectives, which reduces flexibility and shifts focus from the objectives of the project tothe immediate task.
111. See Olajos, K.T. (2023), supra note 98. As noted in the foregoing, in terms of nuclear (thirdparty) liability, general tort law would apply, absent specific applicable national legislationand pending application of the international nuclear liability regime.
112. Ibid.
113. Ibid.
114. See Hebsgaard Muff, S. (2023), supra note 93. Alternatively, subrogation should be waived
by the insurers.
115. Ibid.
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policies to fund potential losses. 116 Yet, until the insurance market is ready to provide
insurance coverage for fusion facilities, self-insurance, captive insurance or mutual
insurance may need to be considered by project owners.

F. Performance measurement and incentives
While quality, time and cost may be useful metrics for the progress in fusion R&D, thelarger and more complex the fusion infrastructure delivery system becomes, the more thecritical success factors will lean on the human aspect. 117 Therefore, introducing
collaborative contracting to fusion infrastructure construction may require new methodsof performance measurement. People in the fusion infrastructure delivery team must be
kept inspired, because while making fusion energy a reality has the potential to makepeople’s lives exponentially better, it will be impossible without inspired people to makefusion energy work on time. 118 As project owners will be competing for a finite pool oftalent capable of delivering fusion infrastructure construction, and that pool of talent will
be in very high demand, it will be of strategic importance to identify, retain and incentivise
talent at all stages of fusion infrastructure construction. 119

G. Intellectual property
Managing intellectual property equitably is and will remain a fundamental challenge forfusion contracting. Because fusion R&D is an intergenerational effort and fusion
intellectual property requires extensive collaboration, to avoid intellectual property
disputes that may cause fusion infrastructure construction projects to be cancelled, theownership of fusion-related intellectual property needs to be secured in contracts. 120
An obvious means of incentivising the creation of generated intellectual property infusion R&D, which will be a key asset to commercial fusion technology deployment, would
be to allow those who create generated intellectual property to own it, so that they can
exploit it to their commercial advantage in the future. 121 However, in a highly collaborative
design environment such as fusion infrastructure construction, it may be the case that
there will be no single “creator” of generated intellectual property; therefore, as analternative, joint ownership of generated intellectual property, or mandatory access rights
and licensing (with a right to sub-license) may need to be considered. 122 In addition, aregime for identifying and monitoring the use of background intellectual property and aregime for mitigating the risk of unknowingly embedding third-party intellectual property
in the fusion infrastructure design, which may cause commercial difficulties later, shouldbe also embedded in contracts. 123

116. See Knott, Z. (2023), “Panel on Insuring Fusion Installations”, presentation at the Fusion for
Energy Contracting Professionals Roundtable, Fusion for Energy, Aix-en-Provence, France,
7-9 June 2022.
117. See Olajos, K.T. (2023), supra note 98.
118. See Olajos, K.T. (2022), supra note 99.
119. Ibid. See also Alty, G. (2022), “Eyes on the Prize – Alignment of Contract Goals in Nuclear
Contracting”, slideshow presented at the Fusion for Energy Contracting Professionals
Roundtable, Fusion for Energy, Aix-en-Provence, France, 7-9 June 2022. While legal entities
are party to a contract, all actual work will be carried out by individuals; therefore, it isimportant to realise that incentivisation should not stop at an entity level, and the strategicinterests of every single – legal or natural – person participating in the fusion infrastructure
construction should be aligned.
120. See Olajos, K.T. (2022), supra note 63.
121. See Olajos, K.T. (2023), supra note 98.
122. See Pfaff, E. (2023), “Intellectual property management from the industry perspective”,
slideshow presented at the Fusion for Energy Contracting Professionals Roundtable, Fusion
for Energy, Saint-Paul-lez-Durance, France, 26-28 June 2023.
123. Ibid.

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H. Building information modelling and fusion facility upgrades
Today, boundaries separate a project owner’s fusion infrastructure delivery organisationfrom its supply chain. 124 These will need to be broken down so that individuals are able towork together by following an established protocol where expertise and networks may beshared in a flexible manner. 125 A multi-party-building, information-modelling protocol
may be a good solution to achieve integration, which will be a key challenge in fusion
infrastructure construction because such a protocol can help ensure greater collaboration
between contractors throughout the project lifecycle. 126
In this vein, fusion infrastructure could be designed and built taking into considerationthat fusion facilities will require care after completion. 127 In addition, because the lifecycleof specific technologies used in a fusion facility may not be congruent with the duration ofearly fusion infrastructure construction, the capacity to deal with technology obsolescenceand this kind of innovation also needs to be factored in the design and construction processof fusion facilities. 128 Similarly, as the interface between existing fusion facilities and newcontracts for their refurbishment or enhancement (i.e. upgrades) is already foreseeable, it
should be anticipated in the chosen contract. 129

I.

Boundaryless organisation

Today, the employment impacts of work on fusion infrastructure construction are linked
closely to the procurement contract implementation; therefore, to avoid the participating
supply chain from considering fusion infrastructure construction as a one-off “transaction”,
project owners should aim to establish long-term partnerships with key technology
providers who are willing to accompany project owners throughout the journey of fusion
technology development. 130
To this end, with the help of appropriate contracting frameworks, 131 strategic humancapital management could transform the network of transactional, bilateral relationships
with key suppliers into collaborative, multilateral partnerships where human capital canbe identified, attracted and managed as if the project owner’s fusion infrastructure delivery

124.
125.
126.
127.
128.
129.
130.

131.

See Olajos, K.T. (2023), supra note 98.
Ibid.
Ibid.
See Hök, S. (2023), “How to manage the interface between green and brown field projects:
lessons for ITER”, slideshow presented at the Fusion for Energy Contracting Professionals
Roundtable, Fusion for Energy, Saint-Paul-lez-Durance, France, 26-28 June 2023.
Ibid.
Ibid.
See Olajos, K.T. (2023), supra note 99. See also Scrum Alliance (n.d.), “4 Values of the Agile
Manifesto”, Scrum Alliance, www.scrumalliance.org/agile-organizations/manifesto(accessed 26 Apr. 2024). This would be supported by an agile mindset because, ifdeveloping a competitive industrial base for the future fusion economy were considered
one of the several objectives of fusion infrastructure delivery, the supply chain realising
the fusion infrastructure would also be, in fact, customers of the project owner’s fusion
infrastructure delivery organisation. As the Agile Manifesto values customer collaboration
over contract negotiations, the linear risk allocation-based contracting approach could bechanged to a collaborative risk management-based approach, pursuing a shared riskreward relationship in an alliance in which both sides win.
For example, no-poaching agreements could be considered as a way to set up a legal
framework on human capital collaboration, to be supplemented with planned career
progression and mobility arrangements within the partnership, to root the industrial
culture, prerequisite to the future of fusion technology development, combining stability
with agility in sync with the supply chain. This could be a promising way to cement the
project owner’s fusion infrastructure delivery organisation as a truly boundarylessorganisation in the long term.

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organisation and its key suppliers were virtually integrated into a boundarylessorganisation 132 with the aim of becoming the “lifetime employer” of choice. 133

J.

Standardisation

As a last point, a competent infrastructure delivery team with a good track record that canbe deployed to follow-on fusion R&D projects will be crucial for the success of fusion
infrastructure delivery. 134 Because only the most experienced owners may succeed inhaving a roster of companies and contractors that they hire, 135 a specific and formal
partnering agreement that is not limited to a particular project could ensure that multiple
firms can gain experience, promote investments by firms and their supply chain, andresult in a positive learning curve. 136
In this sense, the more a partnering model can be adopted, the better the results offusion infrastructure construction will be (provided that there will be experienced
contractors and experienced project owners in the fast-developing fusion ecosystem).137
To this end, standardisation will be necessary to ensure predictability in tender documents
and contract conditions, acceptability of the tender process and contract conditions by theindustry, red tape reduction by developing the appropriate contract form, and reduction oftendering cost by using agile contract management processes. 138

IV.

International Group of Legal Experts on Fusion Energy (FELEX)
In view of the foregoing, it becomes clear that national efforts alone will not lead to success.
All stakeholders – international and national – will have to work together. With this inmind, legal experts are needed to sustain the momentum and to proactively address legal
issues, notably those issues that rise at the international level and, ultimately, those thatare described in this paper, by developing a common reference document. 139
To this end, Fusion for Energy 140 invited professionals from the fusion industry,
international law firms, international organisations, regulators, and specialists ininternational regulation development – selected based on their demonstrated knowledge
and experience in the legal or regulatory fields and their commitment to the developmentof fusion energy for peaceful purposes – to form FELEX as an informal international expert

132. See Ashkenas, R., et al. (2002), The Boundaryless Organization: Breaking the Chains ofOrganization Structure, 2nd ed., Jossey Bass Publishers, San Francisco, pp. 179-242.
133. See Olajos, K.T. (2023), supra note 98.
134. See Flyvbjerg, B. and D. Gardner (2023), supra note 78, pp. 80-96.
135. Ibid.
136. See Chao, A. and D. Aranyi (2023), supra note 92.
137. See Flyvbjerg, B. and D. Gardner (2023), supra note 78, pp. 143-156.
138. See Chao, A. and D. Aranyi (2023), supra note 92. See also Olajos, K.T. (2023), supra note 98.
The application of nuclear regulation to the ITER supply chain – inspected by the French
nuclear regulator and the ITER Organization anywhere in the world – has helped create a
global platform to standardise tokamak fusion technology components by contract.
139. See Tonhauser, W. (2023), supra note 9.
140. Fusion for Energy, established by Council Decision 2007/198/Euratom of 27 March 2007,
OJ L 90 (30 Mar. 2007), p. 58, is the European Union organisation managing Europe’s
contribution to ITER. In addition to ITER, Fusion for Energy is involved in other major fusion
R&D projects that include implementation of the Broader Approach Agreement, enteredinto between Euratom and Japan, and preparation for the construction of the European
demonstration fusion plant. See Fusion for Energy (n.d.) Fusion for Energy: About F4E,
https://fusionforenergy.europa.eu (accessed 12 Dec. 2023).

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panel of scientific independence. 141 As immediate tasks, the initial members of FELEX –acting in their personal capacity – have analysed and revised the key issues document
prepared by the Secretary of the Roundtable, taking into consideration the inputs ofdelegates; reviewed the relevant legal, regulatory, and procurement and contract issues;
proposed appropriate amendments; and made recommendations to move forward infinding appropriate solutions to the identified issues. 142 FELEX’s findings are expected to
become a common reference document, to be published as part of the Proceedings of the2022-2023 Fusion for Energy Contracting Professionals Roundtables. 143

V.

Next steps
It is an exciting time for fusion as fusion technology breakthroughs, developing regulatory
frameworks for fusion technologies, and introducing collaborative contracting in early
fusion infrastructure construction are all happening at the same time.
With these considerations in mind, work commenced in December 2021 on creating aplatform that would connect interested communities to exchange views and share ideas,
knowledge and experiences. This platform is known today as the Fusion for Energy
Contracting Professionals Roundtable. 144 During its first two years, the Roundtable has
managed to bring together the different perspectives of legal, contracting, procurement
and project management professionals, policymakers, regulators, technology developers,
supply chain members and investors in the iconic meeting room of the ITER Council andget them engaged in the long journey of fusion technology development.
Also only recently, IAEA Director-General Rafael Grossi announced the creation of the
IAEA’s World Fusion Energy Group, which will bring together scientists and engineers,
policymakers, financiers, regulators and civil society as the “next leg of the fusion energy
journey”. 145 In addition, it is expected that the IAEA will work closely with experts in thefield to outline “Fusion Key Elements”, such as fusion-related definitions, characteristics
and criteria for fusion energy to help develop a common understanding among
stakeholders, which is essential for global deployment. 146 These are in fact also topics thathave been discussed both at the Roundtable and at FELEX. Further, the desire to harmonise141. FELEX was established at the Fusion for Energy Contracting Professionals Roundtable,organised by Fusion for Energy in collaboration with INLA and the ITER Organization at the
ITER Headquarters in Saint-Paul-lez-Durance, France on 26-28 June 2023. See Articles 1 and
2, FELEX (2023), “Terms of Reference of the International Group of Legal Experts on Fusion
Energy (FELEX)”, in K.T. Olajos (ed.), Fusion for Energy Contracting Professionals Roundtable
Proceedings, Fusion for Energy, Barcelona, p. 10.
142. See FELEX (2023), “Key Issues – Outcome of the First Round of Deliberations of theInternational Group of Legal Experts on Fusion Energy (FELEX)”, in K.T. Olajos (ed.), Fusion for
Energy Contracting Professionals Roundtable Proceedings, Fusion for Energy, Barcelona, pp. 12-28.
143. At the time of writing, the Fusion for Energy Contracting Professionals Roundtable
Proceedings are in the process of publication. In their current form (December 2023), they
may be consulted at https://drive.google.com/file/d/1c6GXzFx7bH9noSWqwb8IHBFJi3c_q6Br/view?usp%20=sharing (accessed 2 May 2024).
144. The Fusion for Energy Contracting Professionals Roundtable is a Fusion for Energy Legal Lab
event that was created to co-develop innovative legal thinking with key legal, contract andregulatory experts in the field to enable successful delivery of fusion megaprojects for the
benefit of all humankind. See Fusion for Energy, “F4E Contracting Professionals Roundtablebrings together more than 300 participants”, https://fusionforenergy.europa.eu/news/f4econtracting-professionals-roundtable-brings-together-more-than-300-participants(accessed 2 May. 2024); Olajos, K.T. (2023), “Foreword”, in K.T. Olajos (ed.), Fusion for Energy
Contracting Professionals Roundtable Proceedings, Fusion for Energy, Barcelona, pp. 7-9.
145. Midgley, E. (2023), “New IAEA Initiative to Enhance Fusion Energy Collaboration”, IAEA,
www.iaea.org/newscenter/news/new-iaea-initiative-to-enhance-fusion-energycollaboration (accessed 12 Dec. 2023).
146. Ibid.
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legal and regulatory frameworks for fusion technologies was re-confirmed by regulatorsand experts at the first IAEA Technical Meeting on Fusion Design Safety and Regulation.147
To make use of everything that has been achieved at the Roundtable and by FELEX thus
far, it seems that the time is right to hold a dedicated conference for fusion project owners,
policymakers and regulators that addresses the various legal aspects of fusion technology
development. 148 In addition, a specific contract drafting workshop, where delegates of theRoundtable would develop a standard form of contract with a fair allocation of risk forfusion infrastructure construction, seems to be a timely undertaking.

147. The first IAEA Technical Meeting on Fusion Design Safety and Regulation (EVT 2102804)
took place in Vienna on 23-25 October 2023 with the participation of 102 delegates from23 IAEA members states and three international organisations. See Choi, G. and D. Watson(2023), supra note 64. The meeting has provided essential inputs for the development ofprinciples and key concepts for fusion safety and regulation, which will serve as a basis
for the development of IAEA fusion safety reports. See also Johnson, P.L. (2023), supranote 24, pp. 32, 37; Calle Vives, P. (2022), supra note 62.
148. The planned dates for the next Fusion for Energy Roundtable are 25-28 June 2024.

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CASE LAW
Slovak Republic
Global 2000 v. ÚJD SR
Public participation in decision making within the nuclear sector in the Slovak Republic ispart of environmental protection as covered by the Aarhus Convention, 1 the Espoo
Convention, 2 the EIA Directive, 3 Act No. 24/2006 Coll. on Environmental impact
assessment, as amended, Act No. 71/1967 Coll. on Administrative proceedings, as
amended, and Act No. 541/2004 Coll. on the Peaceful use of nuclear energy, as amended. A
general act governing free access to information in the Slovak Republic is Act No. 211/2000
Coll. on Free access to information and on amendment and supplement to certain acts, as
amended (Freedom of Information Act). Its philosophy is that all information is accessible
with certain exceptions stipulated by some acts.
The plaintiff, Global 2000, lodged a request with the Nuclear Regulatory Authority of
the Slovak Republic (Úrad jadrového dozoru Slovenskej republiky, ÚJD SR), the defendant,
for information and documentation related to the application and permit for the Mochovce
Nuclear Power Plant, Units 3 and 4. 4 The ÚJD SR, as the first instance authority, decided to“partially withhold the requested information as it contains sensitive information”. 5 The
plaintiff appealed this decision to the second instance authority, the Chairperson of theÚJD SR, who confirmed the first instance decision. 6
The plaintiff then filed a lawsuit with the Regional Court in Bratislava (the Court)
arguing that there was a compelling pubic interest in the public having access to therequested information and that the plaintiff had a right of access pursuant to the Freedomof Information Act and the Aarhus Convention. 7 The ÚJD SR argued that it had followed
domestic and international law and its own internal regulations in partially denying theplaintiff’s request for information and, further, disputed that there was a compelling public
interest, noting that only five persons reviewed the application documentation during theperiod when it was available for public consultation. 8 The Court found that the ÚJD SR
acted in accordance with the Aarhus Convention and the Freedom of Information Act, as
the information at issue is sensitive because it relates to “ensuring the physical security of

1.
2.
3.

4.

5.
6.
7.
8.

Convention on Access to Information, Public Participation in Decision-Making and Accessto Justice in Environmental Matters (1998), 2161 UNTS 450, entered into force 30 Oct. 2001
(Aarhus Convention).
Convention on Environmental Impact Assessment in a Transboundary Context (1991),
1989 UNTS 310, entered into force 10 Sept. 1997 (Espoo Convention).
Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014
amending Directive 2011/92/EU on the assessment of the effects of certain public andprivate projects on the environment, Official Journal of the European Union (OJ) L 124 (25 Apr.
2014) (EIA Directive).
Global 2000 v. ÚJD SR, Proc. No. IS/305/2017, Regional Court of Bratislava, paras. 1-2 (2023)(Slovak Republic). A redacted English translation of the judgment is available on the ÚJD
SR website at: www.ujd.gov.sk/wp-content/uploads/2023/09/Judgement_1S_305_2017_
redacted.pdf (accessed 15 May 2024).
Ibid., para. 3.
Ibid., paras. 7-9.
Ibid., para. 10.
Ibid., para. 35.

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a nuclear power plant and thus to ensuring the protection of the health of employees andthe public, as well as the protection of the work environment and life environment”,
thereby outweighing the plaintiff’s interest. 9 On these grounds, in addition to others, theCourt dismissed the case without awarding costs of the proceedings to the defendant.10
The judgment in the case, No. 1S/305/2017, was delivered on 16 February 2023 and cameinto force on 23 March 2023. 11

United States
Spent fuel storage litigation
There continues to be significant litigation activity in the United States (US) federal courts
concerning challenges to two licences issued by the US Nuclear Regulatory Commission(NRC) providing for the temporary storage of spent nuclear fuel.

Texas v. NRC
On 25 August 2023, the Court of Appeals for the Fifth Circuit vacated a licence the NRC
previously issued to Interim Storage Partners, LLC (ISP), which had authorised theconstruction and operation of a consolidated interim storage facility (CISF) in Andrews
County, Texas. 12 That licence, issued by the NRC in September 2021, authorised ISP toreceive and store up to 5 000 metric tons of spent nuclear fuel in above ground canisters
and casks for a licence term of up 40 years. The NRC issued this licence to ISP pursuant to
its regulations in the US Code of Federal Regulations (CFR) Title 10, Part 72, which were firstpromulgated in 1980 for the licensing of both onsite and away-from-reactor private spent
nuclear fuel storage facilities. 13
The legality of the NRC’s issuance of the CISF licence was challenged in the Fifth Circuitby the US State of Texas and two organisations representing property owners and oil andgas interests in the vicinity of the facility (collectively referred to as “Fasken”). In its
decision (issued by a panel of three judges), the court agreed with the primary argument
advanced by the State of Texas and held that the NRC lacked authority under the US
Atomic Energy Act of 1954, as amended, to “issue licenses for private parties to store spent
nuclear fuel away-from-the-reactor”. 14
In reaching its decision, the court explained that although the NRC has authority underthe Atomic Energy Act to issues licences for the possession of “special nuclear material”,“source material” and “byproduct material” (which are the constituent elements of spent
nuclear fuel), the statute only authorises the issuance of such licences for specificenumerated purposes, “none of which encompass storage or disposal of material asradioactive as spent nuclear fuel”. 15 The court also determined that the NRC’s assertion of
authority to license the storage of spent nuclear fuel at a location away from the reactor
where it was generated “cannot be reconciled with the Nuclear Waste Policy Act” (NWPA). 16
The court explained that the NWPA “creates a comprehensive statutory scheme foraddressing spent nuclear fuel accumulation”, which “prioritises construction” of apermanent federal spent fuel repository at Yucca Mountain and “plainly contemplates

9.
10.
11.
12.
13.
14.
15.
16.

76

Ibid., para. 77.
The Court did not award costs because the defendant was an administrative body and did
not submit costs incurred to the Court. Ibid., para. 92.
Ibid., Certification Clause.
Texas v. NRC, 78 F.4th 827 (5th Cir. 2023).
Licensing Requirements for the Storage of Spent Fuel in an Independent Fuel Spent Storage
Installation, 45 Federal Register (Fed. Reg.) 74693 (12 Nov. 1980).
Texas, supra note 12, p. 831.
Ibid., pp. 840-841 (citing 42 United States Code (USC) 2073, 2093 and 2111).
Ibid., p. 842.
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that, until there’s a permanent repository, spent nuclear fuel is to be stored onsite
at-the-reactor or in a federal facility.” 17The court acknowledged that its reading of the NRC’s lack of authority in this regard
contrasted with prior decisions issued by two other courts of appeals, which had held that
the NRC did possess authority to license storage of spent nuclear fuel at privately owned,away-from-reactor facilities. However, the court determined these prior decisions were
unpersuasive because they “essentially assumed” that the Atomic Energy Act vested the
NRC with this authority rather than “provid[ing] a textual analysis of the Atomic Energy
Act and whether it allows away-from-reactor spent nuclear fuel storage”. 18 The court alsodeclared that decisions surrounding the disposal of nuclear waste was a “major question”
of “great economic and political significance” and “public concern”, and thus even if there
were ambiguity in the Atomic Energy Act or the NWPA as to the scope of the Agency’s
authority, the Commission’s interpretation of its own authority to issue the CISF licence
was not entitled to deference and that a clear delegation of authority is absent from theAtomic Energy Act. 19

Holtec CISF
On 9 May 2023 (prior to the Texas v. NRC decision, discussed above), the NRC issued asecond CISF licence to Holtec International, authorising the construction and operation ofa facility in Lea County, New Mexico, for the receipt and storage of over 8 000 metric tonsof spent nuclear fuel for a licence term of 40 years. As a result of the NRC’s issuance of thelicence, a consolidated proceeding that had been pending in the Court of Appeals for theDistrict of Columbia (DC) Circuit was no longer held in abeyance. 20 This proceeding
involves multiple environmental and non-profit organisations as well as the same Faskenorganisations that challenged the ISP licence in Texas v. NRC. Each petitioner had
previously sought to intervene as parties in the Holtec CISF licensing proceeding while theapplication was still pending before the NRC, but were denied intervention for failure to
submit an admissible contention under the NRC’s procedural rules. 21 Upon denial of theirrequests to intervene in the administrative proceeding, each petitioner sought judicial
review of that denial within 60 days, as required by the statute governing judicial review
of final orders in NRC licensing proceedings. 22 However, since October 2020 the DC Circuit
had been holding the case in abeyance, in part because the NRC’s final decision on whether
to issue the licence was not expected until 2022 or 2023.
With the issuance of the CISF licence to Holtec in May 2023, the DC Circuit removed
the case from abeyance and the parties began briefing, which will conclude in January 2024.
The petitioners argued that the issuance of the CISF licence violates the NWPA and also

17.
18.
19.

20.
21.

22.

Ibid., pp. 843-44.
Ibid., p. 841 (citing Bullcreek v. NRC, 359 F.3d 536 (DC Cir. 2004); Skull Valley Band of Goshute
Indians v. Nielson, 376 F.3d 1223 (10th Cir. 2004)).
Ibid., p. 844 (citing West Virginia v. EPA, 142 S. Ct. 2587 (2022)). The court also rejected the
NRC’s arguments for dismissal of the petitions for review on procedural grounds. First, thecourt determined that each petitioner had “standing” under the US Constitution to bring
their claims in federal court because both petitioners “successfully assert[ed] an injury
resulting from the license.” Ibid., pp. 835-837. And the court determined that each petitioner
could seek judicial review of the issuance of the licence, notwithstanding that neither hadintervened as a party in the licensing proceeding before the Agency, because both parties
asserted that the NRC had acted beyond its statutory authority. Ibid., pp. 839-840.
Beyond Nuclear, Inc. v. NRC, DC Cir. No. 20-1187 (consolidated with Nos. 21-1225, 21-1104
and 21-1147).
See Holtec International (HI-STORE Consolidated Interim Storage Facility), CLI-20-04,
91 NRC 167 (2020); Holtec International (HI-STORE Consolidated Interim Storage Facility),
CLI-21-04, 93 NRC 119 (2021); Holtec International (HI-STORE Consolidated Interim Storage
Facility), CLI-21-07, 93 NRC 215 (2021) (upholding dismissal of all contentions).
28 USC 2344. The venue for such challenges is appropriate either in the judicial circuit “inwhich the petitioner resides or has its principal office”, or in the Court of Appeals for the
DC Circuit. 28 USC 2343.

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raised multiple challenges concerning the sufficiency of the discussion of safety risks andenvironmental impacts within Holtec’s application. The NRC filed its response on
9 November 2023.
On 11 July 2023, Fasken also filed a separate petition for review in the Court of Appeals
for the Fifth Circuit, challenging the Holtec CISF licence. 23 Unlike its petition for review inthe DC Circuit (challenging the NRC’s denial of its request to intervene as a party in thelicensing proceeding), discussed above, Fasken’s challenge in the Fifth Circuit seeks direct
review of the NRC’s May 2023 issuance of the licence to Holtec. Shortly after Fasken’s
petition for review was filed, the NRC filed a motion to dismiss the petition for lack ofjurisdiction, arguing that Fasken could not challenge the issuance of the licence and thatits sole remedy under the federal statute governing judicial review of NRC licensing
decisions was to challenge the NRC’s denial of its request to intervene as a party.
Alternatively, the NRC argued that the Fifth Circuit should transfer Fasken’s petition to the
DC Circuit, where Fasken had already filed a jurisdictionally proper petition for review
concerning the Holtec CISF. On 25 August 2023, the Fifth Circuit denied the NRC’s motion
to transfer the petition for review and on 13 September 2023 the Court ordered that the
motion to dismiss be “carried with the case”, meaning it will be considered in conjunction
with a full briefing on the merits. Briefing has not commenced at the time of writing.

Commission denial of hearing concerning export licence application
On 11 September 2023, the NRC denied a request for hearing and intervention concerning
an export licence application filed by the US Department of Energy and National Nuclear
Security Administration (DOE/NNSA). 24 The licence, issued by the NRC on the same day,allows DOE/NNSA to export up to 130 kilograms of highly enriched uranium (HEU) in theform of broken metal to Framatome for fabrication into fuel for use in the High Flux Reactor
at the Institut Laue-Langevin (ILL) in Grenoble, France. The NRC received a petition fromDr Alan J. Kuperman, co-ordinator of the Nuclear Proliferation Prevention Project (NPPP) at
the University of Texas at Austin, seeking intervention and a hearing on the export licenceapplication and requesting that the NRC reduce the amount of HEU that DOE/NNSA may
export under the licence. 25
The Atomic Energy Act of 1954, as amended by the Nuclear Non-Proliferation Act of
1978, requires that the Commission provide opportunities for public participation in
nuclear export licensing proceedings. 26 Under NRC regulations, the Commission will granta request for a hearing on an export licence application when the Commission finds thehearing will be in the public interest and will assist the Commission in making thestatutory determinations required by the Atomic Energy Act of 1954, as amended. In
addition, where a person requests a hearing and asserts an interest that may be affectedby the issuance or denial of an export licence, the Commission will consider the nature of
the alleged interest; how that interest relates to the issuance or denial of the export licenceapplication; and the possible effect of any order on that interest. 27
In its order denying the request for a hearing, the Commission found that
Dr Kuperman’s request failed to meet these standards. Dr Kuperman asserted that both
institutional interests and personal interests would be affected by approval of the export
licence application. First, he asserted that NPPP’s institutional interest in providing
information to the public on nuclear proliferation, terrorism and the use of HEU would be“significantly and adversely impaired” unless there was a hearing on the application. 28 The
Commission rejected this argument, stating that an institutional interest in providing

23.
24.
25.
26.
27.
28.

78

Fasken Land and Minerals, Limited v. NRC, 5th Cir. No. 23-60377.
US Department of Energy (Export of 93.20% Enriched Uranium), CLI-23-02, 98 NRC (2023)(slip op. at 2).
Ibid., p. 3.
42 USC 2155a.
10 CFR 110.84(b).
CLI-23-02, slip op., supra note 25, p. 5.
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information to the public was not sufficient to show an affected interest and that
Dr Kuperman had not shown how the specific export licence in question would hinder his
ability to carry out educational activities through NPPP. 29 Second, Dr Kuperman asserted
that his individual interests would be affected because approval of the application could
increase “global risks of nuclear proliferation and nuclear terrorism, thereby increasing the
likelihood that an adversary’s nuclear weapon will be detonated in the United States” andby consequence adversely affecting Dr Kuperman’s health, safety and well-being. 30 The
Commission rejected this argument as well, stating that Dr Kuperman had failed to provide
any evidence of a specific risk or credible threat that would arise from the export. Thus,
the Commission concluded that Dr Kuperman had not demonstrated an interest that may
be affected by the Commission’s consideration of the application. 31
The Commission also determined that Dr Kuperman had not demonstrated that ahearing would be in the public interest or would assist the Commission in making therequired statutory and regulatory determinations because he had not shown that a hearing
would bring new information to light.32 After the petition for a hearing was submitted,
DOE/NNSA provided specific information that Dr Kuperman had identified as necessary for
the Commission to make an informed determination on the application. 33 The NRC also
obtained additional technical information from the Executive Branch of the US government
related to the amount of HEU requested in the application. 34 With this additional information
available to the Commission and the public, the Commission concluded that Dr Kuperman
had failed to adequately specify what new information would be provided at a hearing thatwas not already available to the Commission and had failed to adequately explain how ahearing would add clarity to the assertions made in the petition.
NRC regulations governing public participation in export licensing proceedings also
allow members of the public to submit written comments that the NRC will consider andrespond to, if appropriate. 35 Thus, while the Commission denied Dr Kuperman’s hearing
request, it referred the petition to the NRC’s Office of International Programs for the NRC
staff to address as a public comment on the export licence application.

29.
30.
31.
32.
33.
34.
35.

Ibid.
Ibid., p. 6.
Ibid.
Ibid., p. 7.
Ibid.
Ibid., p. 3. The NRC is required to seek and obtain views from other elements of the Executive
Branch (including the Departments of State, Energy, Defence, and Commerce, as
appropriate), prior to taking action on certain export licence applications. See 10 CFR 110.41.
10 CFR 110.81(a).

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NATIONAL LEGISLATIVE AND REGULATORY ACTIVITIESNATIONAL LEGISLATIVE AND REGULATORY ACTIVITIESJapan 1
General legislation, regulations and instruments
Enactment of the GX Decarbonization Power Supply Act
Background

Japan is determined to address climate change with an international commitment to
reduce greenhouse gas emissions by 46% compared to 2013 by 2030 and to achieve net zero
greenhouse gas (GHG) emissions by 2050. 2 While the global trend towards decarbonisationis accelerating, the Russian invasion of Ukraine, which began in February 2022, has broughtsignificant changes to the global energy landscape regarding the security and cost ofenergy supplies. As most of Japan’s energy resources are imported from abroad, these
events have made securing energy supply and dealing with soaring energy prices an urgent
issue in Japan.
Under these circumstances, the Basic Policy for the Realisation of GX (Basic Policy) wasapproved by the Cabinet on 10 February 2023. GX is a term unique to Japan that refers to
the “Green Transformation” of the entire economic and social system to meet GHG
emission reduction targets by 2030 and achieve net zero GHG emissions by 2050. Japan
views these efforts as an opportunity for economic growth while achieving emission
reductions and enhancing industrial competitiveness. To ensure a stable energy supply,
the Basic Policy calls for a shift to decarbonised power sources that contribute to energy
self-sufficiency, such as renewable energy and nuclear power. This represents Japan’srecognition that nuclear, as well as renewables and other power sources that contribute tonational energy security and are highly effective for decarbonisation, will be used to theirmaximum potential to overcome the current crisis. While reiterating that safety is the top
priority, the Basic Policy clearly states that “a necessary amount of nuclear power will be
continuously utilized on the major premise of ensuring safety and public trust”. 3 In linewith the Strategic Energy Plan, efforts will be made to develop and construct innovative
nuclear reactors with built-in safety mechanisms and to facilitate the restart of existing
nuclear power plants “that have passed safety reviews by the Nuclear Regulation Authority
and have gained local understanding”. 4

1.

2.
3.
4.

This report is the outcome of analysis and research conducted by the Japan Energy Law
Institute and does not reflect or represent the views and official position of theGovernment of Japan. The institution alone is responsible for the facts and opinions
described in this report.
Ministry of Economy, Trade and Industry (METI) (2023), “The Basic Policy for the Realizationof GX – A Roadmap for the next 10 Years”, p. 2, available at: www.meti.go.jp/english/press/
2023/pdf/0210_003a-2.pdf (accessed 26 Apr. 2024).
METI (2021), “Outline of Strategic Energy Plan”, p. 5, available at: www.enecho.meti.go.jp/
en/category/others/basic_plan/pdf/6th_outline.pdf (accessed 26 Apr. 2024)
METI (2023), supra note 2, 8-9.

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NATIONAL LEGISLATIVE AND REGULATORY ACTIVITIESIn addition to the Basic Policy, the Cabinet also proposed an Act for Partial Revision of
the Electricity Business Act and Other Acts for Establishing an Electricity Supply System
for Realizing a Decarbonized Society (GX Decarbonization Power Supply Act), 5 whichamended several laws, including the Electricity Business Act; 6 the Act on the Regulation of
Nuclear Source Material, Nuclear Fuel Material and Reactors (Reactor Regulation Act); 7 theAtomic Energy Basic Act; 8 the Act on Special Measures Concerning Promotion of Utilizationof Electricity from Renewable Energy Sources; 9 and the Act on the Implementation of
Reprocessing of Spent Fuel in Nuclear Power Generation (Reprocessing Act). 10 These
amendments further Japan’s policy of maximising the use of highly decarbonised powersources that contribute to energy security, as indicated in the Basic Policy. 11
The GX Decarbonization Power Supply Act was approved by the Diet on 31 May 2023.
The Act:
•

•

•

5.
6.
7.
8.
9.
10.
11.

82

clarifies the principles governing the use of nuclear power in the Atomic Energy
Basic Act:oby amending the Atomic Energy Basic Act to clarify the top priority of safety
and the value of nuclear energy use in contributing to stable electricity supply
and realisation of a decarbonised society); andoby amending the Atomic Energy Basic Act to clarify the responsibilities of thestate and operators (acceleration of back-end processes such as
decommissioning and final disposal, voluntary safety improvement anddisaster prevention measures).

creates requirements for ageing nuclear power reactors under the Reactor
Regulation Act:oby amending the Reactor Regulation Act to oblige nuclear power operators tocarry out a technical evaluation of the deterioration of their facilities every
10 years, when they intend to operate their facilities for more than 30 years
from the start of the operation; andoby amending the Reactor Regulation Act to oblige nuclear power operators todevelop a long-term facility management plan based on the results of theabovementioned evaluation and obtain approval from the Nuclear Regulation
Authority (NRA).

establishes rules governing the operational period of nuclear power plants in theElectricity Business Act:oby amending the Electricity Business Act to set forth that an extension of theperiod of operation of a nuclear power plant (in principle, stipulated to be
40 years) is permitted only if the Minister of Economy, Trade and Industry
approves: (1) securing a stable supply; (2) contributing to realisation of adecarbonised society; and (3) voluntary safety improvements and constantimprovement of disaster prevention measures; andoby amending the Electricity Business Act to set forth that the extension period

Act No. 44 of 2023.
Act No. 170 of 1964.
Act No. 166 of 1957.
Act No. 186 of 1955.
Act No. 108 of 2011.
Act No. 48 of 2005.
METI (2023), “Datsutanso Syakai no Jitsugen ni Muketa Denki Kyoukyu Taisei no Kakuritsu I
Hakaru Tameno Denkijigyo Ho Nado no ItibIwo Kaiseisuru Houritsu An (GX Datsutanso DengenHo) no Gaiyou” [Summary of the Bill to Amend the Electricity Business Act and Other Acts
to Establish an Electricity Supply System for a Decarbonized Society (GX Decarbonization
Power Supply Act)] (in Japanese), available at: www.meti.go.jp/press/2022/02/20230228005/20230228005-1.pdf (accessed 26 Apr. 2024).
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shall be 20 years. Additional extensions are allowed only for the period during
which the reactor operation is suspended due to reasons unforeseeable by the
nuclear operator (e.g. changes in systems and operations related to safety
regulations, provisional disposition orders).
•



promotes smooth and steady decommissioning under the Reprocessing Act:oto cope with full-scale decommissioning in the future, by amending the
Reprocessing Act to authorize the Nuclear Reprocessing Organization of Japan(NuRO) to provide: (1) comprehensive co-ordination of nationwide
decommissioning; (2) joint implementation of research and development,
equipment co-ordination; and (3) financial management for decommissioning;and 12oby amending the Reprocessing Act to obligate nuclear operators to makedecommissioning contributions to the NuRO.

Clarification of national responsibilities

The Atomic Energy Basic Act, enacted in 1955, stipulates that the research, development
and utilisation of nuclear energy is limited to peaceful purposes, and specifies theimportance of ensuring safety and information transparency. The amendments to the act
stipulate the principle of “safety-first”, based on reflection on the Fukushima Daiichi
Nuclear Power Plant accident, and they also proclaim a “national responsibility” to securea stable supply of electricity, realise a decarbonised society and contribute to enhanceautonomy of the electricity supply. The act also stipulates basic measures for appropriate
utilisation of nuclear energy, such as maintaining the industrial base and improving thebusiness environment in Japan.

Amended regulations for ageing nuclear power reactors

The amended Reactor Regulation Act, which will enter into force on 6 June 2025, obliges a
nuclear power operator to develop, every 10 years after the first 30 years of operation, aplan for long-term management of a nuclear power reactor (“long-term facility
management plan”), which is required to obtain approval from the NRA.
The current Reactor Regulation Act stipulates two mechanisms:•

the “Approval of Extending Operational Period” system, which allows a one-time-onlyextension of the operating period of a nuclear power reactor by up to 20 years if
approved by the NRA before the expiration of the operating period of 40 years; and•the “Technical Aging Evaluation” system, which nuclear power operators are
required to carry out every 10 years after the first 30 years of operation. 13

As a matter of fact, nuclear power operators need to conduct overlapping works,
because both systems require them to carry out the same technical evaluation of
degradation before 40 years of operation. For this reason, the amended Reactor Regulation

12.

13.

NuRO is a licensed corporation to which a nuclear operator contributes funds to cover thecost of reprocessing spent nuclear fuel. In the past, a nuclear operator had a reserve fundsystem under which the nuclear operator paid the necessary funds for reprocessing
operations based on the amount of spent nuclear fuel generated. However, in the case of
the reserve fund system, the funds belonged to the operators, and if an operator wentbankrupt, there was a risk that reliable payment of costs could not be guaranteed.
Therefore, the Reprocessing Act, supra note 10, was enacted, and a licensed corporation(NuRO) was established to be responsible for steady reprocessing, and nuclear operators
were obliged to contribute reprocessing costs to NuRO.
For an overview of the current process for plant life extension, see NRA (2022), “Convention
on Nuclear Safety National Report of Japan for 9th Review Meeting”, pp. 32-33, 86-93,
available at: www.nra.go.jp/data/000402611.pdf (accessed 26 Apr. 2024).

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NATIONAL LEGISLATIVE AND REGULATORY ACTIVITIES

Act, which stipulates the approval system for the long-term facility management plan,
integrates the two mechanisms to avoid duplication.
Compared to the “Approval of Extending Operational Period” system under the current
Reactor Regulation Act, the amendment to the act increases the frequency of confirmationfrom only one application for a 20-year extension at 40 years of operation to every 10 years
from 30 years after operation. In terms of the comparisons with the “Technical Aging
Evaluation” system under the current Act, if nuclear power operators cannot maintaincompliance with regulatory standards, the amended Reactor Regulation Act obligates themto stop operating. In this regard, the amended legal system is more direct and has astronger legal basis. 14
According to one interpretation of the current Reactor Regulation Act, if a nuclear
power operator does not receive permission for a change to a reactor installation, approvalof the Design and Construction Plan and approval for extending the operational period by
the end of the 40th year of operation, the NRA must terminate the review of the licence,and the operator will not be able to extend the plant’s operation. 15 This interpretation
created a concern that the time limit for the review of the approval of extending
operational period of Kansai Electric Power Company's Mihama Unit 3 and Japan Atomic
Power Company's Tokai No. 2 could not be met by the end of the plants’ 40th year ofoperation and the time limit for the review of the extension of licence operation would
expire. However, the long-term facility management plan, which is provided by theamended law, does not stipulate a deadline for application, thereby eliminating thesystemic irrationality of decommissioning due to the expiry of time. 16Extension of the operational period of nuclear power plants

Pursuant to the GX Decarbonization Power Supply Act, the provisions on operating periods
contained in the Reactor Regulation Act will be transferred to the Electricity Business Act.
This amendment is in response to the NRA's opinion that “the utilization period of nuclear
power reactor facilities is a matter of policy judgment regarding the use of nuclear energy
and is not a matter for which the NRA should express its opinion”. 17This maximum operating period of 40 years, with the possibility of a 20-year extension,
was established by an amendment to the Reactor Regulation Act in 2012 following theaccident at the Fukushima Daiichi Nuclear Power Station. In the discussions on theamendment in 2012, the legislator who proposed the legislation stated, “First of all, the

14.
15.

16.

17.

84

NRA (2023), “Choki Shisetsu Kanri Keikaku no Ninka Seido ni Kansuru Q & A” [Q&A on theapproval system for the long-term facilities management plan] (written in Japanese), p. 11,
available at: www.nra.go.jp/data/000440836.pdf (accessed 15 Jan. 2024).
Specifically, in the review of the extension of the operating period, the current Reactor
Regulation Act does not have clear provisions on how to handle the situation where theinitial operating period (40 years) expires during the review, and there has been somediscussion on the operation of the law. See Shibata, T. (2019), “Wagakuni no Genshiryoku
Hatsudensyo Unten Encho Tetsuzuki to Sono Kadai – Kankei Hourei ▪ Unyou ni Kansuru Bunseki to
Kokusai Hikaku” (“Procedures for Extending the Operation Period of Nuclear Power Plants inJapan and Related Topics – Analysis of Related Laws and International Comparison”),
Institute of Energy Economics, Japan (IEEJ), IEEJ Energy Journal, Vol. 14, No. 1 , IEEJ, Tokyo,
available at: https://eneken.ieej.or.jp/data/8097.pdf (in Japanese) and https://eneken.ieej.or.
jp/data/8291.pdf (English version) (accessed 26 Apr. 2024).
Furusawa, T., Yamauchi, T. (1 June 2023), “Kaisetsu: GX Datsutanso Dengen Houan Seiritsu /Chuchoki Houshin, Dou Shimesu” [Commentary: the GX Decarbonization Power Supply Bill
passed / medium- and long-term policy, how to implement] (in Japanese), The Denki
Shimbun (The Electric Daily News), Japan Electric Association, Tokyo, p. 1.
Translated from original Japanese in NRA (2020), “Unten Kikan Encho Ninka no Shinsa to Choki
Teishi Kikan Chu no Hatsuden You Genshiro Shisetsu no Keinen Rekka tono Kankei ni Kansuru Kenkai”(“Opinion on the relationship between the review of the authorization of an extension of theoperation period and the ageing of power reactor facilities during a long-term shutdown
period”), available at: www.nra.go.jp/data/000323916 (accessed 26 Apr. 2024).
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setting of the figure of 40 years is very political and not based on any scientific basis.” 18 In
addition, a few other countries have set an upper limit on the operating period. 19 At thetime this proposed amendment was considered, several experts called for the abolition of
the upper limit, saying that the upper limit of the operating period should be determinedscientifically. However, as a result of comprehensive consideration of the concerns raisedby the local communities in which the nuclear power plants are located, and the lessons
learnt and reflections on the accident at the Fukushima Daiichi Nuclear Power Station, thisamendment finally took the form of a self-restrictive policy decision to maintain the“40 years + 20 years” framework for the operational period. 20
Importantly, the GX Decarbonization Power Supply Act amends the Electricity Business
Act to exclude periods of “shutdown due to reasons unforeseeable to nuclear operators”
from calculations of the length of a nuclear power plant’s operation. 21 Some examples ofsuch exempt shutdown periods enumerated in the amendment are:•periods of shutdown resulting from changes in legislation (including periods ofreview and preparation following changes in circumstances);•

periods of shutdown resulting from administrative orders, recommendations andadministrative guidance (excluding those caused by improper conduct of an
operator); and•periods of shutdown caused by court orders for provisional dispositions or otherreasons unforeseeable to an operator (only if overturned by a higher court).

This list is not comprehensive, but merely indicative of those reasons for shutdown
specifically envisaged at the time of the drafting of the amendment. It is recognised that
this amendment is a catch-all clause to exclude from the calculation of a reactor’soperating period any time during which its operation is suspended to cope with “reasons
unforeseeable to a nuclear operator”, as specified by a ministerial ordinance. For example,
there could be a case, as a result of an administrative disposition, that the use of port
facilities managed by a local government is not permitted under the Port and Harbour Act,22and it thus becomes impossible to unload equipment necessary for the operation of thenuclear power plant and the operation of the nuclear reactor has to be suspended. 23
The development of the above-mentioned amendment concerning the extension of
the operation period of a nuclear reactor can be attributed to the fact that many nuclear
lawsuits have been filed that have affected the operation of nuclear power plants in Japan.
There have been several provisional dispositions ordering an injunction against operation

18.

19.
20.

21.

22.
23.

Translated from original Japanese in Minutes of the Committee on Environment, House ofRepresentatives, 180th Diet Session, No. 6, Statement by Liberal Democratic Party MP
Kazunori Tanaka, p. 8, (in Japanese) at: https://kokkai.ndl.go.jp/#/detailPDF?minId=1180
04006X00620120615&page=1&spkNum=0&current=2 (accessed on 26 Apr. 2024).
See NEA (2019), Legal Frameworks for Long-term Operation of Nuclear Power Reactors, OECD
Publishing, Paris, pp. 26-27, Table 2.1.
Minutes of the Committee on Economy, Trade and Industry, House of Councillors,
211th Diet Session, No. 9., Statement by Yasutoshi Nishimura, Minister of Economy, Tradeand Industry (written in Japanese), pp. 20-21, available in Japanese at: https://kokkai.ndl.
go.jp/#/detailPDF?minId=121114080X00920230516&page=20&spkNum=137&current=2(accessed 26 Apr. 2024).
Translated from original Japanese, in Council of Ministers for Nuclear Energy (2023), “Kongo
no Genshiryoku Seisaku no Houkousei to Koudou Shishin” [“Future Direction of Nuclear Power
Policy and Action Guidelines”], p. 7, available in original Japanese at: www.meti.go.jp/
press/2023/04/20230428005/20230428005-2.pdf (accessed 26 Apr. 2024).
Act No. 218 of 1950.
Minutes of the Committee on Economy, Trade and Industry, House of Councillors,
211th Diet Session, No. 10, Statement by Yasuhiro Matsuyama, Director-General, Electricity
and Gas Industry Department of Agency for Natural Resources and Energy (in Japanese),
p. 4, available at: https://kokkai.ndl.go.jp/#/detailPDF?minId=121114080X01020230518&
page=4&spkNum=40&current=1.

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NATIONAL LEGISLATIVE AND REGULATORY ACTIVITIESof a nuclear power plant, all of which have been overturned by the higher courts. As alreadymentioned, under the revised law, the period during which the operation of a nuclear
power plant is suspended due to such provisional dispositions is considered to be asuspended period with reasons unforeseeable to a nuclear operator, and the operation of
the nuclear power plant may be extended by this amount of time.
Considering that there have been several provisional dispositions against nuclear
power plants, it is anticipated that the amendment will be met with strong opposition from
opponents of nuclear power, including plaintiffs’ groups. In addition, there is an issue as
to what reasons fall under the vague phrase “reasons unforeseeable to a nuclear operator”.
Considering the legislative intent, which is to allow extension of the operation period while
maintaining the existing framework of the operation period, as a result of taking into
account the perspective of nuclear energy utilisation policy and the lessons learnt from the
Fukushima Daiichi accident, it is necessary in the future to list more specific reasons in aministerial ordinance to ensure transparency for the public, and to establish clear
examination criteria to clarify the standards for applications for approval of operational
extension by operators.
In addition to these amendments to the law made by the GX Decarbonization Power
Supply Act, there is also a proposal to make the cost of safety measures eligible for theLong-Term Decarbonization Power Supply Auction 24 to increase the predictability of thepayback of safety measures investments, based on the policy of making the best use ofexisting nuclear power. However, only some of the critical issues in the nuclear policy set
out in the aforementioned Basic Policy for the Realisation of GX and the Future Nuclear
Policy Directions and Course of Action decided by the Ministerial Conference on Nuclear
Energy in April 2023 have been addressed explicitly in the current GX Decarbonization
Power Supply Act. A significant challenge is to promote the replacement of nuclear power
plant sites planned for decommissioning with the next generation of innovative reactors
to implement the medium- to long-term policy of realising the value of nuclear energy asa driving force in GX.

Slovak Republic
General legislation, regulations and instruments
Decree of the Nuclear Regulatory Authority of the Slovak Republic (ÚJD SR)
No. 355/2023 Coll. of 28 August 2023 amending the Decree of the ÚJD SR No. 52/2006
Coll. on professional qualification, as amended
The 2023 amendments to the 2006 Decree on professional qualification were prompted by
Act No. 310/2021 Coll. amending and supplementing Act No. 177/2018 Coll. on certain
measures to reduce administrative burdens by using public administration information
systems and on the amendment and supplement of certain acts (Anti-bureaucratic Act),as amended. Changes were also triggered by application practice of the Act No. 541/2004
Coll. on the Peaceful use of nuclear energy (Atomic Act) and on the amendments andsupplements to some acts as amended, where data from reference registers were used forverification of data contained within the application for a certificate of professional
qualification to employees of licence holders.

24.

86

This is the bidding system promoting new investment for decarbonisation power supply,
which began in 2023. METI (21 June 2023), “Choki Datsu Tanso Dengen Auction ni Tsuite”[Regarding the Long-Term Decabonization Power Supply Auction] (written in Japanese),
METI, available in original Japanese at: www.meti.go.jp/shingikai/enecho/denryoku_gas/
denryoku_gas/seido_kento/pdf/081_07_00.pdf (accessed 15 Jan. 2024).
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NATIONAL LEGISLATIVE AND REGULATORY ACTIVITIESInternational co-operation
Quadrilateral meeting of nuclear regulatory authorities hosted in the Slovak Republic
The regular annual quadrilateral meeting of nuclear regulatory authorities of Czechia,
Hungary, the Slovak Republic and Slovenia took place on 14-15 June 2023 in Oponice,Slovak Republic. Following the rotation principle, the meeting was hosted by the Slovak
Republic upon the invitation of the ÚJD SR.
During the two-day meeting, the partner countries discussed and exchanged views on
the current topics of mutual interest in the field of nuclear safety and regulatory activities,
as well as on other matters within their competence. ÚJD SR Chair Dr Marta Žiaková
provided information on the ongoing process of commissioning Unit 3 of the Mochovce
Nuclear Power Plant. The partner countries further reflected on common existing andfuture challenges, in particular those related to long-term operation of nuclear power
plants, fuel diversification, knowledge management and licensing of new innovative
nuclear technologies, such as small modular reactors. The meeting also touched upon theEuropean Instrument for Nuclear Safety and Cooperation and European Nuclear Safety
Regulators Group-related assistance and activities aimed at further strengthening global
nuclear safety.
Upon invitation of the quadrilateral members, the Finnish Radiation and Nuclear
Safety Authority (STUK) also attended the meeting. The partner countries decided to invite
Finland to become a permanent member.

Bilateral meeting between the Slovak Republic and Austria
The 30th annual bilateral meeting of the delegations of the Slovak Republic and Austria on
issues of common interest in the field of nuclear safety and radiological protection took
place in St. Pölten, Austria on 28-29 June 2023. The partner countries informed each otherof current developments in nuclear safety and radiological protection, activities of theregulatory authorities and other relevant institutions, operation of nuclear facilities,
amendments to related legislation, international peer review missions and developmentsin the field of radiation monitoring. The topics also included issues of emergency
preparedness, decommissioning of nuclear facilities and the issue of a new nuclear power
plant in the Slovak Republic.
The Slovak delegation was led by the Chairperson of ÚJD SR, Dr Marta Žiaková, andwas composed of representatives of the ÚJD SR, the Public Health Authority of the Slovak
Republic, the Ministry of Economy of the Slovak Republic, the Ministry of Environment of
the Slovak Republic, the Ministry of Foreign and European Affairs of the Slovak Republic,
the National Nuclear Fund, Slovenské elektrárne. a.s., Jadrová a vyraďovacia spoločnosť,a.s. and Jadrová energetická spoločnosť Slovenska, a.s.
The meeting provided a beneficial opportunity for discussion and information sharing
regarding the Slovak nuclear programme among the experts present.

Slovenia
Nuclear installations
Establishment of the working group for the co-ordination of activities related to theconstruction of a new nuclear power plant in Slovenia
At the beginning of September 2023, the government of Slovenia appointed a working
group responsible for the co-ordination of activities related to the construction of a new
nuclear power plant (the JEK2 project). The JEK2 project is the most important strategic
investment in a low-carbon source of electricity in Slovenia.

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NATIONAL LEGISLATIVE AND REGULATORY ACTIVITIESTo co-ordinate the activities of the JEK2 project, with the aim of establishing a suitable
regulatory framework and speeding up the implementation of the project, the working
group:•

ensures the co-ordinated and continuous co-operation of the members and active
participants of the working group in the implementation of the JEK2 project;•monitors and co-ordinates the processes of placement, licensing, selection of abusiness model, closing of the financial structure and strategic selection of theequipment supplier;•prepares starting points and professional bases for the national capacity building
policy in support of the JEK2 project;•creates starting points for the legislation and regulation of issues related to theimplementation of the JEK2 project;•monitors the preparation of national strategic documents that deal with or havean impact on the JEK2 project or the long-term use of nuclear energy in Slovenia
and, if necessary, gives opinions in this regard;•

monitors and learns about the international practice of new nuclear construction;and•designs content and co-ordinates the preparation of foundations and feasibility
studies for the JEK2 project.

A State Secretary from the Cabinet of the Prime Minister presides over the working
group. Its members include high-level representatives from various ministries, as well as
the chairpersons of the Slovenian Nuclear Safety Administration, GEN energija d.o.o. (thepotential investor), Krško Nuclear Power Plant and ELES (the operator of Slovenia’s electric
power transmission network). The working group reports on its work to the governmentof Slovenia at least once every six months and will prepare a final report on theperformance of its tasks once it ceases to operate. The first meeting of the working group
was held on 25 September 2023.

United States
Environmental protection
Revisions to the National Environmental Policy Act
On 3 June 2023, President Biden signed into law the Fiscal Responsibility Act of 2023 (theAct). 25 Although the Act’s primary purpose relates to federal government spending, the Act
also includes provisions substantively amending the United States (US) National
Environmental Policy Act of 1969 (NEPA). 26 Since its enactment in 1970, NEPA has required
all federal agencies to assess the environmental effects of their proposed actions prior to
making decisions. Specifically, NEPA requires federal agencies, prior to taking any “major
Federal actions significantly affecting the quality of the human environment”, to preparea “detailed statement”, referred to as an environmental impact statement (EIS). An EIS
must describe, among other things, the environmental impacts of the proposed action; any
adverse environmental effects that cannot be avoided if the action is taken; andalternatives to the proposed action. The US Nuclear Regulatory Commission (NRC) has
implemented NEPA into its regulations at Part 51 of Title 10 of the US Code of Federal
Regulations (CFR), “Environmental Protection Regulations for Domestic Licensing andRelated Regulatory Functions”. These regulations identify what NRC regulatory actions

25.
26.

88

Public Law (Pub. L.) No. 118-5, 137 Stat. 10.
Ibid., sec. 321, 137 Stat. 38-46. NEPA is codified at 42 United States Code (USC) 4321 et seq.
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require the preparation of an EIS and the process by which an EIS is prepared by the NRC
staff, including procedures for public participation.
Some of the Act’s notable amendments to NEPA include:•

defining “major federal action” (the threshold for triggering the applicability ofNEPA), a term that previously was not defined in the legislation; 27•

providing new guidelines for agencies to make threshold determinations ofwhether a NEPA review is required at all, including (among others) whether
preparation of a NEPA document would “clearly and fundamentally conflict withthe requirements of another provision of law” or whether the proposed agency
action is “nondiscretionary” such that the agency “does not have authority to takeenvironmental factors into consideration in determining whether to take theproposed action”; 28•

codifying the requirement for an EIS to consider the “reasonably foreseeable”
environmental effects of a proposed action, the “reasonably foreseeable” effects
that cannot be avoided, and a “reasonable range” of alternative actions that are“technically and economically feasible”; 29•

providing judicially enforceable time limits for the completion of an EIS (no later
than two years after the agency determines that the EIS is required) or thecompletion of an environmental assessment 30 (one year after determining theassessment is required); 31•

requiring that an environmental assessment not exceed 75 pages and that an EIS
not exceed 150 pages (or 300 pages if a proposed agency action is “of extraordinary
complexity”) 32;•

codifying the practice of designating a “lead agency” with primary responsibility
for the NEPA review where two or more federal agencies qualify as a “participating
federal agency” with respect to the same major federal action; 33 and•requiring that agencies develop procedures for the applicant or sponsor of a project
to prepare the EIS or environmental assessment under the federal agency’s
supervision, with the agency maintaining responsibility to independently evaluate
its contents. 34

The NRC is implementing these legislative changes and reviewing its procedures todetermine what, if any, further changes to the agency’s current NEPA practices may be
warranted.

27.
28.
29.
30.

31.
32.
33.
34.

Ibid., sec. 111(10), 137 Stat. 45.
Ibid., sec. 106(a), 137 Stat. 39.
Ibid., sec. 106(b), 137 Stat. 39.
An “environmental assessment” is a concise public document, shorter than an EIS, that anagency uses to determine whether a proposed federal action has the potential to causesignificant environmental impacts. If the environmental assessment concludes that anaction will not have significant environmental impacts, the agency issues a Finding of No
Significant Impact and its NEPA review is complete. If the environmental assessment
concludes that the environmental impacts of the proposed federal action will be significant,the agency then proceeds with an EIS.
Pub. L. No. 118-5, sec. 107(g), 137 Stat. 42.
These page limits do not include any citations or appendices.
Pub. L. No. 118-5, sec. 107(a), 137 Stat. 40.
Ibid., sec. 107(f), 137 Stat. 42.

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Nuclear safety and radiological protection (including nuclear emergency planning)
Approval of final rule for emergency preparedness for small modular reactors and othernew technologies
The Commission has directed the NRC staff to issue a final rule (Final Rule) and associatedregulatory guidance that provides an alternative, risk-informed, performance-based
emergency preparedness regulatory framework for small modular reactors (SMRs) andother new technologies. 35 These technologies include non-light-water reactors, researchand test reactors, and medical radioisotope facilities.
The Final Rule, was published in the Federal Register, Volume 88, No. 220, builds on the
NRC’s existing emergency preparedness programme for large, light-water-cooled nuclear
power reactors. The Final Rule and related guidance addresses how state-of-the-art facility
designs and safety research apply to future operation of SMRs and other new technologies.
The Final Rule’s emergency preparedness framework adopts a technology-inclusiveand consequence-oriented approach in recognition of the fact that potential hazards from
SMRs or other new technologies could differ substantially from those posed by large lightwater reactors (for example, smaller reactor core sizes, lower probability of severe
accidents, slower accident progression and smaller accident offsite consequences). The
Final Rule includes a scalable method to determine the size of the offsite emergency
planning zone around a facility. Applicants and licensees for SMRs and other new
technologies can use the Final Rule in developing a performance-based emergency
preparedness programme as an alternative to the current radiological emergency planningrequirements. The Final Rule does not change the emergency planning regulatory
framework for large light-water reactors (greater than 1 000 megawatts thermal), fuel cycle
facilities, or currently operating research and test reactors.

Licensing and regulatory infrastructure
Decommissioning financial assurance rule for sealed and unsealed radioactive materials
On 24 July 2023, the NRC staff sought Commission approval to publish a proposed ruleconcerning the NRC’s regulations for decommissioning financial assurance for sealed andunsealed radioactive materials. 36 The purpose of decommissioning financial assurance
regulations is to ensure that adequate funds are available for decommissioning of licensed
nuclear facilities in a safe and timely manner. Existing NRC regulations require applicants
for a licence to possess and use sealed and unsealed by-product material and special nuclear
material in certain quantities to submit to the NRC a “decommissioning funding plan” (DFP)
that contains, among other things, a detailed cost estimate for decommissioning and a
description of the licensee’s method for assuring the availability of decommissioning funds
over the life of the facility. 37 To determine whether a DFP is required, NRC regulations direct

35.

36.
37.

90

Memorandum to Daniel H. Dorman, EDO, from Rochelle C. Bavol, Acting Secretary (14 Aug.
2023), “SRM-M230814 – Affirmation Session – SECY-22-0001: Rulemaking: Final Rule:
Emergency Preparedness for Small Modular Reactors and Other New Technologies”,(ADAMS Accession No. ML23226A184) (ADAMS stands for Agencywide Documents Accessand Management System, which is the NRC’s official system for accessing publicly
available documents. The documents referenced in this article with an ADAMS number
can be accessed with the “Advanced Search” option and searching the “Accession Number”
on the NRC’s ADAMS website, at: https://adams.nrc.gov/wba); see also Memorandum for
the Commissioners from Daniel H. Dorman, EDO (3 Jan. 2022), “Final Rule: Emergency
Preparedness for Small Modular Reactors and Other New Technologies (RIN 3150-AJ68;
NRC-2015-0225)’”, SECY-22-00001 (ADAMS Accession No. ML21200A059).
Memorandum for the Commissioners from Daniel H. Dorman, EDO (24 July 2023), “Proposed
Rule: Decommissioning Financial Assurance for Sealed and Unsealed Radioactive Materials(3150-AK52; NRC-2017-0031)”, SECY-23-0062 (ADAMS Accession No. ML23010A168).
See 10 CFR 30.35 (by-product material); ibid., sec. 70.25 (special nuclear material).
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applicants to Appendix B to 10 CFR Part 30, which is a table that lists radionuclides andquantity limits. An applicant must submit a DFP to the NRC when the quantity of sealed or
unsealed radionuclides exceeds the value in Appendix B by a magnitude specified in NRC
regulations. For radionuclides that are not specifically listed in Appendix B, the table provides
default possession values.
The NRC’s draft proposed rule would add radionuclides not currently listed inAppendix B, including radionuclides associated with existing and emerging industrial andmedical applications, such as germanium-68. The draft proposed rule would also revise
the NRC’s decommissioning funding requirements so that they are more risk-informed 38
and based on the cost of disposal and relative risk to public health and safety. The draft
proposed rule would also remove all radionuclides with a half-life of 120 days or less from
Appendix B to make clear that such radionuclides are not subject to decommissioning
financial assurance requirements.
If approved by the Commission for publication, a proposed rule would be published in
the Federal Register for public comment. The NRC staff also plans to hold a public meeting
to promote full understanding of this proposed rule and facilitate public comments.

38.

As part of this update, the NRC is updating the basis for the values in Appendix B to 10 CFRPart 30 from International Commission on Radiological Protection (ICRP) Publication 2 to
ICRP 26 and ICRP 30 that have served as the basis for 10 CFR Part 20.

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Euratom Atomic Energy Community (Euratom)
Euratom Community activities
Declaration on EU SMR 2030 – The role of Research, Innovation, Education and Training
for the safety of Small Modular Reactors (SMRs) in the European Union
On 4 April 2023, the Declaration on EU SMR 2030 1 was signed by European Union (EU)Commissioner Mariya Gabriel jointly with European stakeholders, namely the European
trade association for the nuclear energy industry (nucleareurope), the Sustainable Nuclear
Energy Technology Platform, the European Nuclear Society and the European Nuclear
Education Network. The declaration emphasised the significance of research, innovation,
education, and training for ensuring the safety and development of SMRs in the EU.
SMRs were placed in the context of the EU’s efforts to become a climate-neutral
continent while maintaining energy security, autonomy and resilience. Collaboration
between the nuclear industry and scientific community was welcomed to achieve this goal.
The Commission committed to continue supporting research and innovation in nuclear
safety through the Euratom Research and Training Programme.
For those member states that choose to include nuclear in their energy mix, thedeclaration acknowledged the role of SMRs in electricity production, in complementing
renewables and in increasing nuclear safety (through SMRs’ inherent safety features). It
further stressed the wider potential applications beyond electricity production, such as inenergy-intensive industries. The declaration underlined the need for nuclear andradiological protection expertise and called for collaboration with other EU programmes
related to education and skills. It also outlined research and innovation efforts for thesafety of SMRs and advanced modular reactors and called for synergies with otherprogrammes. The declaration further emphasised the potential socio-economic impact
through the creation of highly qualified jobs and high-added value companies, including
small and medium-size enterprises.
Overall, the signatories committed to continuing to lead research, innovation, educationand training for the safety of European SMRs in support of the EU pre-partnership on SMRs.

1.

European Commission (EC) Declaration of 4 April 2023 on EU SMR 2030 – The role ofResearch, Innovation, Education and Training for the safety of Small Modular Reactors(SMRs) in the European Union, available at: https://research-and-innovation.ec.europa.eu/
system/files/2023-04/ec_rtd_eu-smr-declaration-2030.pdf (accessed 26 Apr. 2024).

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Applicability of the Complementary Delegated Act to the “EU Taxonomy ofenvironmentally sustainable economic activities”
As of 1 January 2023, the Commission Delegated Regulation (EU) 2022/1214,2 adopted on thebasis of Regulation (EU) 2020/852,3 became applicable. 4 By supplementing Commission
Delegated Regulation (EU) 2021/2139,5 the Complementary Delegated Act includes, understrict conditions, certain nuclear energy-related activities in the so-called “EU taxonomy ofenvironmentally sustainable economic activities” established by the Taxonomy Regulation.
The Taxonomy Regulation aims to redirect capital flows across the European Union
towards sustainable activities so that the EU can achieve climate neutrality by 2050.
According to Article 3 of the Taxonomy Regulation, “an economic activity shall qualify asenvironmentally sustainable” if it meets the following cumulative criteria:•

it “contributes substantially to one or more of the [six] environmental objectives
set out in Article 9” of the Taxonomy Regulation;•

it “does not significantly harm any of those environmental objectives” (so-called“do no significant harm” [DNSH] criteria);•

it “is carried out in compliance with the minimum safeguards laid down in
Article 18” of the Regulation; 6 and•it “complies with technical screening criteria [(TSC)] that have been established by
the Commission” through the adoption of delegated acts.

The environmental objectives are set out in Article 9 and further defined in
Articles 10-15 of the Taxonomy Regulation. Those objectives as set out in Article 9 are:

2.

3.
4.
5.

6.

94

•

climate change mitigation;•

climate change adaptation;•

the sustainable use and protection of water and marine resources;•

the transition to a circular economy;•

pollution prevention and control; and•the protection and restoration of biodiversity and ecosystems.

Commission Delegated Regulation (EU) 2022/1214 of 9 March 2022 amending DelegatedRegulation (EU) 2021/2139 as regards economic activities in certain energy sectors andDelegated Regulation (EU) 2021/2178 as regards specific public disclosures for thoseeconomic activities, Official Journal of the European Union (OJ) L 188 (15 July 2022), pp. 1-45
(Complementary Delegated Act).
Regulation (EU) 2020/852 of the European Parliament and of the Council of 18 June 2020 on
the establishment of a framework to facilitate sustainable investment, and amending
Regulation (EU) 2019/2088, OJ L 198 (22 June 2020), pp. 13-43 (Taxonomy Regulation).
The Regulation “shall apply from 1 January 2023” and it “shall be binding in its entirety anddirectly applicable in all Member States”. Complementary Delegated Act, supra note 2, p. 7,
Article 3.
Commission Delegated Regulation (EU) 2021/2139 of 4 June 2021 supplementing Regulation(EU) 2020/852 of the European Parliament and of the Council by establishing the technicalscreening criteria for determining the conditions under which an economic activity qualifies
as contributing substantially to climate change mitigation or climate change adaptation andfor determining whether that economic activity causes no significant harm to any of theother environmental objectives, OJ L 442 (9 Dec. 2021), pp. 1-349 (First Delegated Act).
Such minimum safeguards include, in particular, alignment with the OECD Guidelines forMultinational Enterprises and the UN Guiding Principles on Business and Human Rights.
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The Taxonomy Regulation requires the Commission to adopt delegated acts
establishing TSC for determining the conditions under which a given economic activity
can be considered environmentally sustainable with respect to the above-mentioned
environmental objectives. 7
In application of this delegation, on 4 June 2021 the Commission adopted the First
Delegated Act establishing TSC for determining the conditions under which certain
economic activities substantially contribute to the environmental objectives of bothclimate change mitigation and climate change adaptation, as well as for determining
whether those economic activities comply with the DNSH criteria. 8 The First Delegated Act,however, did not lay down any TSC for activities in the field of nuclear energy. The
establishment of TSC for those activities was postponed, awaiting an in-depth expert
assessment of whether the nuclear life cycle, and notably nuclear waste, could beconsidered compatible with the DNSH criteria. 9
Upon completion of the above-cited expert assessment, 10 on 9 March 2022, theEuropean Commission adopted the Complementary Delegated Act, which specifies TSC for
certain activities in the nuclear field that can, under strict conditions, make a substantial
contribution to climate change mitigation or climate change adaptation, while fulfilling
the DNSH criteria. The Complementary Delegated Act covers three types of nuclear energyrelated activities:•

pre-commercial stages of advanced technologies to produce energy from nuclear
processes with minimal waste from the fuel cycle; 11•

construction and safe operation of new nuclear power plants, for the generation ofelectricity or heat, including for hydrogen production, using best-available
technologies; 12 and•electricity generation from nuclear energy in existing installations. 13

The above-mentioned activities are considered to provide, in compliance with
Article 10(2) of the Taxonomy Regulation, a substantial contribution to climate change
mitigation by supporting the transition to a climate-neutral economy. 14

International Atomic Energy Agency
Nuclear security
Outreach on the Convention on the Physical Protection of Nuclear Material and its
Amendment
The Agency continued to promote further adherence to and full implementation of theConvention on the Physical Protection of Nuclear Material (CPPNM) and its Amendment
through national workshops and awareness missions. Additionally, in the margins of the67th regular session of the International Atomic Energy Agency (IAEA) General Conference,

7.
8.
9.
10.
11.
12.
13.
14.

The Commission is expressly required to adopt delegated acts defining TSC forenvironmental objective. Taxonomy Regulation, supra note 3, pp. 30-34, Articles 10(3),11(3), 12(2), 13(2), 14(2) and 15(2).
First Delegated Act, supra note 5, p. 1.
See recital (3) of Complementary Delegated Act, supra note 2, p. 1.
See Abousahl, S. et al. (2021), Technical assessment of nuclear energy with respect to the ‘do no
significant harm’ criteria of Regulation (EU) 2020/852 (‘Taxonomy Regulation’), Publications
Office of the European Union, Luxembourg.
See Complementary Delegated Act, supra note 2, Annex I, pp. 8-11.
Ibid., Annex 1, pp. 12-15.
Ibid.
See ibid., recital (6), pp. 2-3.

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the Agency organised a side event jointly with the United Nations (UN) Office on Drugs andCrime (UNODC) on the role of the CPPNM and its Amendment as well as the International
Convention for the Suppression of Acts of Nuclear Terrorism in strengthening nuclear
security worldwide. During the side event, states shared experiences and lessons learnt injoining and implementing these key international legal instruments, and the IAEA and
UNODC showcased the support available to states in this regard.

Nuclear liability
The Bureau of the Fourth Meeting of the Contracting Parties and Signatories to theConvention on Supplementary Compensation for Nuclear Damage (CSC) convened several
virtual meetings since the Third Meeting of the Contracting Parties and Signatories of the
CSC was held in Tokyo from 6-8 June 2023. At these meetings, the Bureau discussed
outreach activities for expanding the membership of the CSC and preparations for the
Fourth Meeting, which is planned to be held in June 2024 at IAEA Headquarters in Vienna,
Austria.

Legislative assistance
The Agency continued to provide legislative assistance to member states to support theestablishment of an adequate and comprehensive national nuclear legal framework andto promote adherence to the relevant international legal instruments. The Agency
provided such assistance through workshops and awareness-raising activities. Specificbilateral legislative assistance was also provided to several member states through writtencomments and advice on the preparation of comprehensive national nuclear legislation.
The Agency conducted a Regional Workshop on Nuclear Law for member states in
Europe and Central Asia, held in Bar, Montenegro, from 4-8 September 2023. The Agency
also held an Interregional Workshop on the International and National Legal Frameworks
for Small Modular Reactors (SMRs) at IAEA Headquarters from 28 August to 1 September
2023. The purpose of this workshop was to raise awareness, improve knowledge, andstrengthen capacity building on the international and national legal frameworks for SMRs.
The annual session of the IAEA Nuclear Law Institute (NLI) was held in Vienna, Austria
from 8-20 October 2023. The NLI was attended by 63 participants from 52 member states.
The Agency also sponsored 14 grantees to attend the International School of Nuclear Law(ISNL), which was held in Montpellier, France from 21 August to 1 September 2023.
The first edition of the World Fusion Outlook was published with the aim to provide
authoritative information and updates on fusion energy and to become a global reference
for energy research and development, technology development, and prospective
deployment of fusion as a source of unlimited low-carbon energy. This new publication
also considered the international legal frameworks for fusion.

67th regular session of the IAEA General Conference
The 67th regular session of the IAEA General Conference was held in person at the IAEA
headquarters in Vienna, Austria from 25-29 September 2023.
Around 2 835 delegates registered to attend the General Conference, coming from
151 of the IAEA’s 178 member states and from international organisations, nongovernmental organisations and the media. A total of 111 side events took place during theweek, highlighting the innovative work underway at the IAEA and in member states using
nuclear technology and its applications.

Resolutions of the Conference
A number of resolutions were adopted by the Conference. As in previous years, resolution
GC(67)/RES/7 on Nuclear and Radiation Safety and resolution GC(67)/RES/8 on Nuclear
Security include sections addressing the legal aspects of nuclear safety and security. All

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resolutions adopted during the 67th regular session of the General Conference are available
on the IAEA website. 15

Nuclear and Radiation Safety (GC(67)/RES/7) 16

Regarding the Convention on Nuclear Safety (CNS), the General Conference urged “allMember States that have not yet done so, especially those planning, constructing,commissioning or operating nuclear power plants, or considering a nuclear power
programme, to become Contracting Parties to the CNS”. 17
Regarding the Joint Convention on the Safety of Spent Fuel Management and on the
Safety of Radioactive Waste Management (Joint Convention), the Conference likewise
urged “all Member States that have not yet done so, particularly those managing
radioactive waste or spent fuel, to become Contracting Parties to the Joint Convention”. 18
The Conference stressed “the importance of CNS and Joint Convention Contracting
Parties fulfilling their respective obligations stemming from these Conventions andreflecting these in their actions to strengthen nuclear safety and in particular when
preparing National Reports, and actively participating in peer reviews for CNS and Joint
Convention Review Meetings”. 19
In addition, the Conference requested “the Secretariat to provide full support for the
CNS and Joint Convention Review Meetings, and to consider addressing their outcomes in
the Agency’s activities, as appropriate and in consultation with Member States”. 20
The Conference further urged “all Member States that have not yet done so to become
Contracting Parties to the Early Notification Convention and the Assistance Convention”
and stressed “the importance of Contracting Parties fulfilling the obligations stemmingfrom these Conventions, and actively participating in regular meetings of theRepresentatives of Competent Authorities”. 21
In this context, the Conference requested “the Secretariat, in collaboration with
regional and international organizations and Member States, to continue its activities topromote the importance of conventions concluded under the auspices of the IAEA and toassist Member States upon request with adherence, participation and implementation as
well as strengthening of their related technical and administrative procedures”. 22
With respect to the Code of Conduct on the Safety and Security of Radioactive Sources,
its supplementary Guidance on the Import and Export of Radioactive Sources, and its
supplementary Guidance on the Management of Disused Radioactive Sources, the General
Conference encouraged “all Member States to make political commitments to thevoluntary and non-legally binding Code of Conduct on the Safety and Security ofRadioactive Sources, its Guidance on the Import and Export of Radioactive Sources, and its
Guidance on the Management of Disused Radioactive Sources, and to implement these, as
appropriate, in order to maintain effective safety and security of radioactive sources
throughout their life cycle”. 23 The Conference also requested “the Secretariat to continue
supporting Member States in this regard”. 24

15.
16.
17.
18.
19.
20.
21.
22.
23.
24.

IAEA (2023), “67th IAEA General Conference (2023) Resolutions and Decisions”, IAEA,
www.iaea.org/about/governance/general-conference/gc67/resolutions (accessed. 26 Apr.
2024).
IAEA (2023), Nuclear and radiation safety, Resolution adopted on 29 September 2023 during
the 13th plenary meeting, IAEA Doc. No. GC(67)/RES/7.
Ibid., p. 7, para. 16.
Ibid., p. 8, para. 17.
Ibid., para. 18.
Ibid., para. 19.
Ibid., para. 20.
Ibid., para. 21.
Ibid., para. 22.
Ibid.

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Similarly, the Conference encouraged member states “to apply the guidance of theCode of Conduct on the Safety of Research Reactors at all stages in their life, including
planning” and “to freely exchange their regulatory and operating information andexperience with regard to research reactors”. 25 In this context, the Conference requested
the Secretariat “to continue to support Member States, upon request, in [the] applicationof the guidance of the Code of Conduct on the Safety of Research Reactors”. 26
With regard to civil liability for nuclear damage, the General Conference encouraged“Member States to give due consideration to the possibility of joining the international
nuclear liability instruments, as appropriate, and to work towards establishing a global
nuclear liability regime”. 27
In this context, the Conference requested “the Secretariat, in coordination with the
OECD/NEA when appropriate, to assist Member States, upon request, in their efforts toadhere to any international nuclear liability instruments concluded under the auspices of
the IAEA or the OECD/NEA, taking into account the recommendations of the INLEX in
response to the IAEA Action Plan on Nuclear Safety”. 28
In addition, the Conference recognised “the valuable work of INLEX”, took note “of its
recommendations and best practices on establishing a global nuclear liability regime,
including through the identification of actions to address gaps in and enhance the existing
nuclear liability regimes”, encouraged “the continuation of INLEX, especially for its support
for the IAEA’s outreach activities to facilitate the achievement of a global nuclear liability
regime” and requested “that INLEX, via the Secretariat informs Member States on a regularand transparent basis about the work of INLEX and its recommendations to the Director
General”. 29

Nuclear Security (GC(67)/RES/8) 30

In the context of nuclear security, the Conference affirmed “the central role of the Agency
in strengthening the nuclear security framework globally and in coordinating international
activities in the field of nuclear security, while avoiding duplication and overlap”. 31
The Conference welcomed “the ongoing preparations for the [the International
Conference on Nuclear Security] ICONS 2024”, encouraged “Ministers, policy-makers,
senior officials and nuclear security experts from all Member States to participate with aview to achieving substantive outcomes which can further strengthen nuclear security”
and further called upon “the Secretariat to continue to organize ICONS every four years”.32
The Conference also encouraged “all Parties to the CPPNM and its 2005 Amendment tofully implement their obligations thereunder” and encouraged “States that have not yet
done so to become party to this Convention and its Amendment”. 33 It further encouraged“the Agency to continue efforts to promote further adherence to the Amendment with theaim of its universalization”. 34 In this context, the Conference reminded “all Parties toinform the depositary of their laws and regulations which give effect to the Convention
without further delay” and requested “the Director General of the IAEA, as the depositary,
to continue communicating such information to all Parties”. 35

25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.

98

Ibid., para. 23.
Ibid., para. 25.
Ibid., p. 9, para. 34.
Ibid., para. 35.
Ibid., para. 36.
IAEA (2023), Nuclear Security, Resolution adopted on 29 September 2023 during the13th plenary meeting, IAEA Doc. No. GC(67)/RES/8.
Ibid., p. 4, para. 1.
Ibid., p. 5, para. 8.
Ibid., p. 5-6, para. 13.
Ibid.
Ibid.
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The Conference requested “the Secretariat to take the Outcome Document of the 2022
Conference of the Parties to the Amendment to the CPPNM into consideration in line with
the Member States’ respective legal obligations, including convening a follow-on
Conference, in line with Article 16.2 of the Convention”. 36

IAEA Treaty Event
The 13th Treaty Event took place on the margins of the 67th regular session of the General
Conference. It provided member states with a further opportunity to deposit theirinstruments of ratification, acceptance or approval of, or accession to, the treaties
deposited with the Director General, including those related to nuclear safety, security andcivil liability for nuclear damage. At the Treaty Event, Belarus ratified the Amendment to
the CPPNM (A/CPPNM), Egypt ratified the CNS, and Zimbabwe delivered the following six
instruments at once: the instruments of accession to the CNS, the Vienna Convention on
Civil Liability for Nuclear Damage, the Joint Protocol relating to the Application of theVienna Convention and the Paris Convention, as well as the Protocol to Amend the Vienna
Convention on Civil Liability for Nuclear Damage, and instruments of acceptance of the
A/CPPNM and of the Agreement on the Privileges and Immunities of the IAEA.

Side event to mark the 20th anniversary of the International Expert Group on Nuclear
Liability
The Agency held a side event to mark the 20th anniversary of the establishment of theInternational Expert Group on Nuclear Liability (INLEX) on the margins of the 67th IAEA
General Conference, held on 27 September 2023 at IAEA headquarters in Vienna, Austria.
The IAEA Director General established INLEX in his announcements to the IAEA Board ofGovernors and to the 47th regular session of the IAEA General Conference in September
2003. INLEX consists of experts from around the world with recognised competence in thefield of civil liability for nuclear damage and related issues, including from countries withand without nuclear power reactors. These expert members serve in their individual
capacities and do not represent their governments or organisations.
The event provided an opportunity to raise awareness of the importance of addressing
civil liability and compensation for nuclear damage. In this context, the event emphasised
the importance of the global nuclear liability regime in:•ensuring the availability of prompt, adequate and non-discriminatory compensationfor victims;•

providing legal certainty regarding the liability of the nuclear industry; and•enhancing international co-operation on nuclear projects.

In addition, the event highlighted the importance of INLEX in enhancing adherence by
nuclear and non-nuclear power generating countries to the global nuclear liability regime
and in contributing to the development of national legal frameworks on nuclear liability.

OECD Nuclear Energy Agency
Meeting of the NEA Working Party on the Legal Aspects of Nuclear Safety(WPLANS)
The WPLANS met in person and online on 27 September 2023 to discuss the legal aspectsof nuclear safety. The meeting was attended by 35 participants representing 18 NEA
member countries, 4 non-NEA member countries, the European Commission (EC) and theInternational Atomic Energy Agency (IAEA).

36.

Ibid., p. 6, para. 14.

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The meeting featured discussions on numerous subjects, including legal issues related
to long-term operation/lifetime extension, with presentations provided by Belgium and theUnited States; the licensing and regulation of small modular and advanced reactors, withpresentations provided by Canada, France and Poland; and legal challenges to licensing
decisions, with presentations provided by Japan and the United States. Reports on national
developments in the legal aspects of nuclear safety were also provided by Brazil and the
Slovak Republic. The WPLANS agreed to work towards publication in 2024 of an update to
the 2019 report entitled Legal Frameworks for Long-Term Operation of Nuclear Power Reactors
and also began discussing the most practical and impactful way to approach its next
significant project on the legal frameworks for the licensing and regulation of small
modular reactors (SMRs).

Meeting of the NEA Steering Committee for Nuclear Energy
The 146th meeting of the NEA Steering Committee for Nuclear Energy took place on
25-26 October 2023 in Paris. The biannual meeting convened NEA member countries todiscuss numerous important topics like the Agency’s engagement with Ukraine and Africa.
A cornerstone of the NEA’s engagement with Ukraine is the new NEA-Ukraine Visiting
Experts Programme, which will bring Ukrainian experts to the NEA for limited-term
assignments. During the meeting, Steering Committee delegates also discussed the NEA’s
engagement with Africa, where many countries are considering nuclear energy in theirplans to increase electricity supply while reducing emissions. The Committee discussed
the potential future involvement of the NEA in the development of nuclear energy on thecontinent while ensuring there was no overlap with existing international initiatives.
Some five years after it last debated the issue, the Steering Committee addressed thehuman capacity needs of the nuclear sector during its policy debate on 26 October 2023.
Delegates noted that there is a looming risk of there not being enough qualified people tosupport current operations, drive further technological developments, and leaddecommissioning and waste management solutions. Because of the demographics of thepresent civil nuclear energy workforce, increasing numbers will have to be recruited to the
nuclear industry even if the current plans for expansion were not realised. To propose
solutions that meet the demands of member countries, the NEA has developed several
global education initiatives, notably the Nuclear Education, Skills and Technology (NEST)
Framework, which offers hands-on training opportunities for future nuclear experts, and
the Global Forum on Nuclear Education, Science, Technology and Policy, which helps tobridge the gaps between academic institutions and the nuclear energy sector. The NEA
invited external speakers from France, Korea the United Kingdom and the United States todiscuss the situation in their countries. In addition, the Steering Committee heard about
nuclear law education from Mr Paul Bowden, co-programme leader of the NEA’s nuclear
education programmes.

2023 International School of Nuclear Law (ISNL)The 22nd edition of the ISNL was held from 21 August to 1 September 2023 at the Universityof Montpellier, in the south of France. The 2023 edition of the programme gathered
60 graduate students and professionals from across the world who came together toenhance their knowledge and understanding of the legal frameworks and major topics
related to the peaceful uses of nuclear energy. This year’s session was attended byparticipants from 37 countries, including many from beyond the NEA membership. To
date, the ISNL has provided a unique educational opportunity to more than 1 200 graduate
students and professionals from more than 100 different countries.
During the two weeks spent in Montpellier, the ISNL delivered a rigorous educational
programme consisting of lectures, group assignments and panel discussions touching on
all aspects of international nuclear law, including nuclear safety, management of spent
fuel and radioactive waste, environmental protection, transport, nuclear security, nonproliferation, safeguards, nuclear liability, and international trade. The programme wasdelivered by nearly 30 different lecturers who are renowned specialists in nuclear law frominternational organisations, governments, academia and private industry.

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In addition to the social programme, the 2023 ISNL included a trip to the ITER
experimental nuclear fusion reactor site, supported by Fusion for Energy, whereparticipants and lecturers had the opportunity to visit the construction site of the world’s
largest fusion research facility as well as learn about fusion technology concepts andpossible legal frameworks for fusion technologies.
While the programme itself has concluded, many participants are continuing theirstudies by completing a multiple-choice test and writing dissertations on topics relevant
to international nuclear law in order to meet the requirements for the University Diploma(Diplôme d'université – D.U.) in International Nuclear Law from the University of Montpellier.

Third NEA Stakeholder Involvement Workshop on Optimisation in Decision Making
The NEA held its Third Stakeholder Involvement Workshop on 5-7 September 2023 in Paris,
with the theme “Optimisation in Decision Making”. The workshop brought together leadersfrom regulation, government, industry, academia, international organisations and nongovernmental organisations with the key objective of identifying the basis for a framework
to help guide decision makers in the nuclear sector to better engage all interested
stakeholders, including the public and local communities, with the ultimate goal ofreaching a sustainable, transparent and widely accepted decision-making process.
Among the many findings from the workshop was that it should be possible toimplement a “framework” nationally and adapt it to cultural contexts by embracing core
ethical and procedural values that reinforce trust. The framework should include a flexible
set of principles to help optimise societal benefits and the well-being of stakeholders byconsidering their input in decision making, increasing shared ownership of the process
and resolving any tensions that might arise from poorly implemented stakeholder
involvement and interactions. Another important conclusion was the need for equity inthe balance of power for stakeholders, which should go beyond legal requirements andinternational and national regulations, serving as a kind of “social licence to operate”.
As part of the NEA’s commitment to advancing optimisation in decision making, ahigh-level NEA group on Stakeholder Engagement, Trust, Transparency, and Social
Sciences has been formed, comprised of nine senior level policy officials.

Roadmaps to New Nuclear Conference
French Minister for Energy Transition Ms Agnès Pannier-Runacher and NEA DirectorGeneral William D. Magwood, IV welcomed the energy ministers and heads of delegationsof 20 countries and over 30 nuclear industry leaders to the conference Roadmaps to New
Nuclear in Paris on 28-29 September 2023. Discussions over the two days of the conference
explored the steps needed to ensure that nuclear new build can help governments toachieve their net zero targets while also ensuring energy security and fostering economic
growth. In the lead-up to COP28, the outcomes of the Roadmaps to New Nuclear conference
will inform the development of actionable policy recommendations for policymakers,
nuclear utilities and the nuclear industry more broadly.
Two communiqués were issued at the conference. First, a ministerial communiqué
presents a call to action and guiding principles in support of roadmaps for nuclear energy,
outlining guiding principles for: nuclear financing, policy and regulation, research anddevelopment, supply chains, fuel supply, skills, public engagement, energy systems
innovation, and international collaborations. Second, associations representing thenuclear industry in OECD countries signed a joint communiqué highlighting the essential
role of nuclear energy and calling on deepening the co-operation between governments,
international organisations and across the industry.

NEA publications of interest
Since the publication of Nuclear Law Bulletin No. 110, the NEA has issued a number ofpublications of interest.

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INTERGOVERNMENTAL ORGANISATION ACTIVITY

The NEA continues to assist its member countries to understand and analyse theconditions for successful development and deployment of SMRs across various power andnon-power markets. Its latest contribution is the launch of The NEA Small Modular Reactor
Dashboard: Volume II. The SMR Dashboard highlights and follows the progress of various SMR
designs toward commercialisation and deployment. As such, it offers decision makers atool to navigate this complex new wave of SMR technology under development around theworld. The new volume, following the release of Volume I in March 2023, assesses 21 new
SMR designs and brings the total number of SMR evaluations the Agency has completed to
42. The NEA SMR Dashboard is an ongoing project for the NEA, with the second edition tobe published in 2024.

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NEWS BRIEFS

NEWS BRIEFS
2024 International Nuclear Law Essentials (INLE)
The next session of the INLE will take place in Paris, France, from 4-8 March 2024. The fiveday INLE course is designed to provide participants with a practical and comprehensive
understanding of the various interrelated legal issues relating to the safe and peaceful use
of nuclear energy. This intensive course in international nuclear law addresses the needs
and interests of lawyers working in either the public or the private sector, but will also beof interest to scientists, engineers, policymakers, managers and other professionals
working in the nuclear field. Renowned specialists in nuclear law from internationalorganisations, governments, academia and private industry will deliver the INLE’s
intensive programme, which consists of a series of lectures, case studies and panel
discussions.

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LIST OF CORRESPONDENTS

List of correspondents to the Nuclear Law Bulletin

ALBANIAMr F. Ylli, Director, Institute of Nuclear Physics

ALGERIAMr F. Chennoufi, Nuclear Regulation Director, National Nuclear Safety and Security Authority

ARGENTINA

Ms J. Antelo, National Commission of Atomic Energy
Ms M.S. Figueredo, National Commission of Atomic Energy
Mr M.R. Paez, Head of Department, Deputy Director of Legal Affairs, National Commission of
Atomic Energy

ARMENIAMr A. Martirosyan, Head, Armenian Nuclear Regulatory Authority

AUSTRALIAMr S. McIntosh, Senior Manager, Government and International Affairs, Australian Nuclear Scienceand Technology Organisation
Mr M. Reynolds, General Counsel, Head of the Office of General Counsel, Australian Radiation
Protection and Nuclear Safety Agency

AUSTRIAMr R.J. Muner, Federal Ministry for Sustainability and Tourism

BANGLADESH

Mr M. Rahman, Director, International Affairs Division, Bangladesh Atomic Energy Commission
Ms S. Rahman, Chair, Bangladesh Atomic Energy Regulatory Authority

BELARUSMr D. Lobach, Principal Specialist, Department of Nuclear and Radiation Safety (Gosatomnadzor),
Ministry for Emergency Situations

BELGIUM

Ms K. Geerts, Head of Legal Service, Federal Agency for Nuclear Control

BRAZIL

Ms D. Fischer, Brazilian Association of Nuclear Law

BULGARIA

Ms M. Minkova, Chief Expert, Department of International Cooperation, International and European
Matters, Nuclear Regulatory Agency
Mr A. Rogatchev, Director, Department of International Cooperation, Nuclear Regulatory Agency

CANADA

Ms L. Thiele, Senior General Counsel, Legal Services, Canadian Nuclear Safety Commission

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LIST OF CORRESPONDENTS

CHINA

Ms Z. Li, Chief Legal Counsel, China National Nuclear Corporation
Mr Y. Qin, Partner, Jun He Law Offices
Mr J. Yuan, Partner, Jun He Law Offices

CZECHIAMr J. Handrlica, Associated Professor, Faculty of Law, Charles University, Prague

DENMARKMr C.L. Hansen, Property Law Division, Danish Ministry of Justice

EGYPT

Mr A. Ali, Acting Chairman, Nuclear Law Department, National Centre for Nuclear Safety andRadiation Control, Egyptian Atomic Energy Authority

ESTONIAMr I. Puskar, Head of Radiation Safety Department, Environmental Board

FINLAND

Ms H. Kyllönen, Senior Specialist, Energy Department, Ministry of Employment and the Economy
Ms L. Mäkipää, Senior Specialist, Energy Department, Ministry of Employment and the Economy
Ms O. Slant, Senior Specialist, Energy Department, Ministry of Employment and the Economy

FRANCE

Ms F. Touïtou-Durand, Head of Legal Services, French Alternative Energies and Atomic Energy
Commission (CEA)

GEORGIAMr G. Basilia, Chief Specialist, Department of Nuclear and Radiation Safety, Ministry of Energy andNatural Resources of Georgia

GERMANY

Ms C. Maurer, Federal Ministry for the Environment, Nature Conservation, Nuclear Safety andConsumer Protection
Mr S. Kuhn, Federal Ministry for the Environment, Nature Conservation, Nuclear Safety andConsumer Protection

GREECE

Dr C. Housiadas, President, Greek Atomic Energy Commission
Ms V. Tafili, Head, International and Public Relations Office, Greek Atomic Energy Commission

HONG KONG, CHINA

Ms M. Hui, Senior Government Counsel, Department of Justice

HUNGARY

Dr L. Czottner, Senior Legal Adviser, Hungary Atomic Energy Authority
Mr Z. Zombori, Legal Adviser, Hungary Atomic Energy Authority

ICELAND

Mr S. Magnusson, Director, Icelandic Radiation Safety Authority

INDIA

Mr Y.T. Mannully, Advocate, High Court of Kerala, India
Mr R. Mohan, Associate Professor, Indian Institute of Management
Ms E. Reynaers Kini, Partner, MVKini

IRELAND

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Mr K. Kelleher, Environmental Protection Agency

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LIST OF CORRESPONDENTS

ITALY

Mr V. Ferrazzano, Director of Corporate Affairs, Legal Affairs and Industrial Security, Nuclear Plant
Management Company (SO.G.I.N. S.p.A.)
Ms S. Scarabotti, Head of Legal Affairs, Nuclear Plant Management Company (SO.G.I.N. S.p.A.)

JAPAN

Prof T. Nomura, Japan Energy Law Institute (JELI)

KOREA

Mr H.B. Chae, Administrator of the Department of Legal Affairs, Korea Institute of Nuclear Safety(KINS)LUXEMBOURG

Mr J. Ducomble, Director of Legal Affairs, Ministry of Environment, Climate and Sustainable
Development
Mr P. Majerus, Head of Radiation Protection Division, Ministry of Health

MEXICO

Mr M. Pinto Cunille, Head of the Legal and International Affairs Department, National Commission
on Nuclear Safety and Safeguards

MOLDOVA

Ms E. Mursa, Senior Specialist, National Agency for Regulation of Nuclear and Radiological
Activities

MONGOLIA

Ms T. Byambadorj, Head of the Foreign Affairs Division, Executive Office, Nuclear Energy
Commission (NEC) of Mongolia

MONTENEGRO

Prof. S. Jovanovic, Professor and Head of the University Centre for Nuclear Competence
and Knowledge Management, University of Montenegro

NETHERLANDS

Mr E. Beenakker, Policy Adviser, Directorate Financial Markets, Ministry of Finance
Dr N. Horbach, Director, International and Comparative Nuclear Law Programme, Dundee
University
Mr I. Oomes, Legal Adviser, Directorate Financial Markets, Ministry of Finance

NORWAYMr S. Hornkjøl, Acting Head of Section, Norwegian Radiation Protection Authority
Mr I. Hvidsten, Higher Executive Officer, Norwegian Ministry of Justice and Public Security

PHILIPPINES

Ms R. Leonin, Head, Information and Documentation Services Section, Technology Diffusion
Division, Philippine Nuclear Research Institute

POLAND

Mr K. Adamczyk, Expert for Legal Affairs, Polish Energy Ministry, Nuclear Energy Department
Mr P. Korzecki, Director, Legal Department, National Atomic Energy Agency of the Republicof Poland
Mr J. Latka, Legal Officer, National Atomic Energy Agency of the Republic of Poland
Mr K. Sieczak, Head of the Regulation Division, Legal Department, National Atomic Energy Agencyof the Republic of Poland
Ms B. Sparażyńska, Chief Expert for EU and International Affairs, Polish Energy Ministry, Nuclear
Energy Department

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LIST OF CORRESPONDENTS

PORTUGAL

Ms M. Meruje, Legal Adviser, Instituto Superior Técnico, Campus Tecnológico e Nuclear
Mr M. Sousa Ferro, Counsel / Professor of Law, Faculty of Law, University of Lisbon

ROMANIAMr V. Chiripus, Head, Legal Advisory Department, Legal and Corporate Affairs Division, S.N.
Nuclearelectrica S.A.
Ms L. Constantin, Legal and Corporate Affairs Director, Nuclearelectrica S.A.
Ms B.P. Perceli, Legal Adviser, National Agency for Radioactive Waste (ANDRAD)
Mr C. Preda, Adviser, National Agency for Radioactive Waste (ANDRAD)

RUSSIAMr A. Bulavinov, Chief Specialist, Department for Legal and Corporate Affairs, State Atomic Energy
Corporation ROSATOM
Mr A. Shkarbanov, International Law Adviser, Department for Legal and Corporate Affairs, State
Atomic Energy Corporation ROSATOM
Mr K. Stalmakhov, Chief Specialist, Department of Legal and Corporate Work and Property Affairs,
State Atomic Energy Corporation ROSATOM
Mr A. Utenkov, Deputy Head, International Relations Department, Federal Environmental, Industrial
and Nuclear Supervision Service (Rostechnadzor)

SERBIA

Ms M. Ćojbaišić, Serbian Radiation Protection and Nuclear Safety Agency

SLOVAK REPUBLIC

Ms K. Manczalová, Legal Adviser, Division of Legislation and Legal Affairs, Nuclear Regulatory
Authority of the Slovak Republic

SLOVENIA

Ms N. Kompare, Office of General Affairs, Slovenian Nuclear Safety Administration

SOUTH AFRICA

Mr D. Davies, Corporate Legal Specialist

SPAIN

Ms L. Blanco Cano, Head of Service, Deputy Directorate General for Nuclear Energy, Ministry for
the Ecological Transition and the Demographic Challenge
Mr J. de Ponga del Pozo, Head of Area of International Nuclear Affairs, Deputy Directorate Generalfor Nuclear Energy, Ministry for the Ecological Transition and the Demographic Challenge
Mr D. García Lopez, Legal Advisor, Legal Affairs Department, Nuclear Safety Council (CSN)

SWEDENMr S. Carroll, Senior Adviser, Vattenfall
Mr T. Lofgren, Senior Legal Adviser, Swedish Radiation Safety Authority
Mr I. Persson, Consultant, Swedish National Council for Nuclear Waste

SWITZERLAND

Ms S. Knopp Pisi, Legal Adviser, Federal Department of the Environment, Transport, Energy andCommunications, Swiss Federal Office of EnergyTÜRKIYE

Mr U. Akyüz, Expert, Ministry of Energy and Natural Resources
Ms B. Yardim, Expert, Ministry of Energy and Natural Resources

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LIST OF CORRESPONDENTS

UKRAINEMr I. Krasnukha, Leading Engineer, National Nuclear Energy Generating Company (Energoatom)
Ms L. Kukharchuk, Head, Legal Support Section, National Nuclear Energy Generating Company(Energoatom)
Mr O. Motsyk, Chief Advisor to the President of National Nuclear Energy Generating Company(Energoatom)

UNITED ARAB
EMIRATES

Ms N. Al Murry, Deputy General Counsel, Nawah Energy Company

UNITED
KINGDOM

Mr B. Allen, Nuclear Third Party Liability Lead, Nuclear Generation Policy, Sector Deal andInternational, Department for Business, Energy and Industrial Strategy

Dr Z. Vovchok, Director of Legal Affairs, Federal Authority for Nuclear Regulation

Ms L. Hughes, Nuclear & Non-Proliferation, Government Legal Department
Mr B. Knight, Senior Lawyer, Nuclear & Non-Proliferation, Government Legal Department
Mr P. Koroma, Nuclear & Non-Proliferation, Government Legal Department
Mr B. Lyons, Policy Adviser, Nuclear Generation Policy, Sector Deal and International, Department
for Business, Energy and Industrial Strategy
Ms C. Rintari, Nuclear & Non-Proliferation, Government Legal Department
Ms T. Saha, Head of Nuclear Generation Policy & Regulatory, Nuclear Generation Policy, Sector
Deal and International, Department for Business, Energy and Industrial Strategy
UNITED STATES

Ms B. Ammon, Deputy General Counsel for Licensing, Hearings and Enforcement, US Nuclear
Regulatory Commission
Mr B. McRae, Assistant General Counsel, US Department of Energy
Ms M. Spencer, Deputy General Counsel, US Nuclear Regulatory Commission

URUGUAY

Prof. D. Puig, Professor of Nuclear Law, College of Law, University of Uruguay

EUROPEAN
COMMISSION

Ms L. Budinova, Directorate General for Energy
Mr A.-I. Florea, Head of Sector – Legal Matters, Directorate General for Energy
Ms A. Siejka, Directorate General for Energy

INTERNATIONALATOMIC ENERGYAGENCY

Mr M. Dorsi, Legal Officer, Nuclear and Treaty Law Section, Office of Legal Affairs
Mr A. Wetherall, Section Head, Nuclear and Treaty Law Section, Office of Legal Affairs

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NEA PUBLICATIONS AND INFORMATION

The full catalogue of publications is available online at www.oecd-nea.org/pub.
In addition to basic information on the Agency and its work programme, the NEA website offers freedownloads of hundreds of technical and policy-oriented reports. The professional journal of the
Agency, NEA News – featuring articles on the latest nuclear energy issues – is available online atwww.oecd-nea.org/nea-news.
An NEA monthly electronic bulletin is also distributed free of charge to subscribers, providing
updates of new results, events and publications. Sign up at www.oecd-nea.org/bulletin.
Visit us on LinkedIn at www.linkedin.com/company/oecd-nuclear-energy-agency or follow us on X
(formerly known as Twitter) @OECD_NEA.

OECD/NEA PUBLISHING, 2 rue André-Pascal, 75775 PARIS CEDEX 16

Nuclear Law Bulletin No. 111
The Nuclear Law Bulletin is a unique international publication for both professionals and academics
in the field of nuclear law. It provides readers with authoritative and comprehensive information on
nuclear law developments. Published free online twice a year in both English and French, it features
topical articles written by renowned legal experts, covers legislative developments worldwide andreports on relevant case law, bilateral and international agreements as well as regulatory activities ofinternational organisations.
The following articles are featured in this issue: “Nuclear liability in respect of Ukraine’s nuclear
installations under Russian military control” by Nathalie L.J.T. Horbach and Omer F. Brown II; “Themodern nuclear liability regime’s concept of ‘environmental damage’: How national courts may apply
it and what remedies they may provide for such damage” by Sandra Knopp Pisi; and “Nuclear fusion:
Legal aspects” by Wolfram Tonhauser and Karoly Tamas Olajos.

Nuclear Energy Agency (NEA)
46, quai Alphonse Le Gallo
92100 Boulogne-Billancourt, France
Tel.: +33 1 73 21 28 19
nea@oecd-nea.org www.oecd-nea.org

NEA No. 7681