Foundations of International Nuclear Law and Environmental Ethics
International nuclear law is a rather complex set of legal norms, treaties, and regulations in charge of nuclear activities globally. It primarily deals with non-proliferation, safety, and environmental protection and has one important part in the framework, the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), 1970. As taken for different purposes as the corner stone of nuclear law, NPT has been criticized as it celebrates differences between nuclear-weapon states and non-nuclear-weapon states.[1]
According to its critics, the NPT requires non-nuclear-weapon nations not to acquire nuclear weapons but allows the five officially recognized nuclear-weapon states to keep nuclear weapons. This apparent inconsistency compromises the legitimacy of the treaty and the solemn commitment of nuclear-weapon nations, as required by Article VI,[2] to disarmament. The slow pace of disarmament and the continuous upgrading of nuclear arsenals, which may encourage proliferation elsewhere, further stains the legitimacy of the treaty.
The international community relies on the International Atomic Energy Agency (IAEA) to play a special role in this regard with its safeguards system, designed to assure that governments are complying with their non-proliferation commitments. Yet successful implementation of those safeguards also requires state cooperation and the IAEA’s ability to detect undeclared nuclear activities. The safeguard flaws that took place in Iran’s enrichment efforts and in Iraq’s nuclear weapons program before 1991 have spurred demands for more rigorous verification procedures and additional protocols. A treaty long considered among the world’s most important, the Comprehensive Nuclear-Test-Ban Treaty (CTBT), remains unratified by such key players as the United States and China. Therefore, it has never entered into force. This impasse not only decreases the impact of the treaty but also reflects more general geopolitical challenges to nuclear disarmament.[4] Regional Nuclear-Weapon treaties such as the Treaty of Rarotonga and the Treaty of Tlatelolco are instances of free zone agreements that promote regional security and peace. However, their effectiveness is limited because there are no similar undertakings by nuclear-armed nations that affect or act in these regions.[5]
Foundations of Nuclear Energy Environmental Ethics
The moral problems of the use of nuclear power vis-a-vis inherent hazards are answered by environmental ethics for nuclear energy. Since proponents point to nuclear energy as a low-carbon alternative that is necessary to reckon with climate change, tragic events like Chornobyl and Fukushima place a shadow over the morality of the pursuit, as read in the possibilities of long-term environmental pollution and health effects that may arise as justification.[6] Intergenerational justice raises an ethical question: Is it right to generate nuclear waste dangerous for tens of thousands of years, with potential risks and management responsibilities placed upon future generations who had no say in today’s energy choices? The problem is also complicated by the absence of a universally accepted remedy for long-term storage of such waste; witness controversy over U.S. repositories like Yucca Mountain.
Environmental justice adds another layer of complexity to the ethical picture since it is perceived as highlighting how vulnerable people are significantly impacted by nuclear facilities and waste structures. Systemic environmental racism has been underscored by pointing out the historical targeting of Indigenous territories and economically deprived communities for uranium mining and waste disposal inequality. In addition, critics say that nuclear power is not as viable as renewable sources like wind and solar power due to the rising costs, long durations of development, and problems with non-remedied disposal.[7]
Environmental Effects of Nuclear Power Worldwide
The environmental effects of nuclear power have a high level of complexity with positive aspects as well as critical problems that contribute to climate change mitigation and sustainable development. It is also said to help curb greenhouse gas emissions; it also presents some critical issues-a particularly the management of radioactive waste, a potential catastrophic accident, and its overall life-cycle environmental footprint. In a closer examination, there’s a technology interwoven with contradictions that call into question whether it is viable as a clean energy source.
- Greenhouse Gas Emissions Abatement
Because nuclear power has virtually zero direct GHG emissions over its lifecycle, the source is generally characterized as low carbon. Lifecycle assessments have found that the full emissions of nuclear power-from uranium mining, plant construction, operating, decommissioning, and waste management-are on par with those from other renewables, such as solar and wind.[8] This characterization, however, misses several crucial points.
First, nuclear power plants are expensive and time-consuming to build, and take more than 10 years to replace energy sources that have fossil fuels as a base.[9] Other renewable energy projects may be easier to establish and cheaper to set up. Second, the nuclear fuel cycle is energy-intensive, and uranium sources have to be mined and processed adding to the levels of greenhouse gas emissions especially when the operations engaging in these processes are fossil fuel-based.[10]
There is also a huge opportunity cost with nuclear energy investments. Spending money on energy efficiency and renewable technology in place of nuclear plants would likely yield more significant carbon savings.[11] Critics argue that the concentration on nuclear energy might divert focus and resources away from even more sustainable and lower-risk options.
- Radioactive Waste Management
Perhaps the greatest challenge facing nuclear power and the environment remains managing the radioactive waste. Spent nuclear fuel and other high-level radioactive wastes present a danger for periods far longer than human civilization has existed.[12] The moral dilemma of intergenerational equality casts a question on the ethics of making countless future generations, who benefit nothing from today’s nuclear power production, bear the cost of treatment of waste.
No country has constructed a deep geological repository completely operational with high-level waste to date, despite decades of effort.[13] Yucca Mountain project in the United States, along with others like it, has succumbed to political, technical, as well as social reasons that reflect public opposition and uncertainties about long-term safety.[14] Lack of proven solution undermines claims about responsible nuclear waste management by the industry and adds to environmental liability of nuclear power.
- Water Consumption and Thermal Pollution
Nuclear power plants are among the most water-intensive energy infrastructure systems globally, with very high cooling consumptions. Excessive consumptions can lead to problems in local water resources, especially in scarcity-stricken or drought-prone regions.[15] The heated water released from nuclear power plants leads to thermal pollution and interference with local biodiversity. In this way, this sort of pollution alters species composition and might increase algal blooms and oxygen depletion.[16]
Climate change also exacerbates them because it increases extreme water temperatures and decreases availability; therefore, nuclear plants may suffer a limited operational capacity or temporary shut-down.[17] The dependency on abundant water supplies makes nuclear energy susceptible to climate-induced water stress, and this puts in question its robustness and sustainability in a warming world.
- Environmental Repercussions of Nuclear Mishaps
As disastrous environmental impacts of nuclear accidents, the technology inherently carries risks. The effects of nuclear catastrophes at Chernobyl and Fukushima have imprinted themselves permanently on ecosystems, economies, and human health.[18] Radioactive contamination in vast areas made them uninhabitable and has caused extensive ecological damage with expensive cleanup and containment efforts continuing even decades after the accidents.
These incidents show an intrinsic weakness in safety culture, regulatory scanning, and risk management by the nuclear industry.[19] Even if it is claimed that newly designed reactors are much safer, human mistake, natural calamity, or malevolent exposure can still not be knocked out entirely. The possibility of grave accidents with international environmental implications calls for stringent scrutiny of nuclear energy proliferation all over the world.
- Environmental Degradation and Habitat Displacement
The environmental footprint of nuclear facilities extends beyond immediate operational impacts. Nuclear plants and associated infrastructure construction alters land use, leading to habitat fragmentation and upsetting regional ecosystems.[20] The creation of exclusion zones, primarily as a result of accidents, creates inadvertently unintended wildlife refuges, as documented in Chernobyl, yet the long-term ecological impact of chronic radiation exposure is still unknown.[21]
Uranium mining also usually occurs in areas that are environmentally sensitive. It results in land degradation, radioactive material waste, and pollution of soil and water resources.[22] Often, the most grievous impacts are borne by indigenous communities and local people, and arguments are presented about environmental justice and equitable distribution of environmental risks and benefits.
Judicial Perspective on Nuclear Energy, Human Rights and Social Justice Human Rights and Environmental Impact
The Advisory Opinion of the International Court of Justice in the Legality of the Threat or Use of Nuclear Weapons pointed out the devastating humanitarian and environmental impacts of nuclear weapons. The Court stated:
“It is impossible to contain the destructive power of nuclear weapons in time and space; they may cause total destruction of civilization and the ecosystem of the whole planet.”
Furthermore, the Court stressed:
“The use of nuclear weapons would in so far as it causes unforeseeable damage by virtue of its sheer force, offend against the principles and rules of humanitarian law.”[23]
These observations underscore the necessity of examining these weapons under international law with regard to their devastating capability.
Right to Information and Public Participation
In its ruling in the European Court of Human Rights case Guerra and Others v. Italy (1998), the Court held:
“The applicants had a right to be given adequate information about the dangers of the chemical factory so they could evaluate the danger they and their families would run.”
The court emphasized state transparency and citizen’s involvement:
“Effective public involvement in environmental decision making is critical to maintain democratic values and safeguard environment and public health rights.”[24]
Although this was a chemical factory case, the prejudice would be no different once in application to judicial review of a determination of nuclear energy that impacts the public.
Judicial Review and the Lawfulness of Nuclear Tests
In the Nuclear Tests cases, the International Court of Justice averred:
“The conduct of nuclear tests that generate radioactive fall-out has worried mankind at large.”
The Court observed that such activities demanded stringent scrutiny and legal examination:
“It is necessary to ensure that activities which may have a profound effect on the environment are subjected to a prior and ongoing assessment of their environmental impact.”[25]
These cases highlight the judiciary’s role in overseeing the legality of nuclear tests to protect human and environmental rights.
Adverse Effects on Indigenous and Local Communities
In Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, although the Court dismissed the case on procedural grounds, it acknowledged:
“The Marshall Islands has been profoundly affected by the effects of nuclear testing conducted in its territory, leading to lasting health and environmental consequences.”[26]
This observation underscores the disproportionate impact of nuclear activities on indigenous and local communities, necessitating enhanced legal and protective measures.
Compensation for Nuclear Accidents
In the Supreme Court of Japan’s decision regarding the Fukushima nuclear disaster, the Court found:
“The government and the operator failed to take necessary measures to prevent the accident, despite foreseeing the risk posed by a massive tsunami.”
The Court reinforced the government’s duty:
“Governmental negligence in regulating nuclear activities can lead to significant human rights violations, warranting compensation and corrective measures.”[27]
This verdict clearly points out that the state must safeguard its people from the risks that surround nuclear energy.
Holistic Approaches to Global Nuclear Oversight
Nuclear governance requires a multidimensional policy approach that is not only non-proliferation but also one encompassing safety and security, environmental protection, respect for human rights, and social justice. This general framework required managing nuclear energy and materials responsibly and sustainably, through use of international treaties and agreements, regulatory bodies and institutions, ethical principles and norms, and legal systems.
International legal frameworks have been the heart of international nuclear governance. The NPT remains most central, based on non-proliferation, disarmament and peaceful use of nuclear energy.[28] Great as this is, however, it has long been criticized for perpetuating growing inequities between nuclear-weapon and non-nuclear-weapon states. Supplementing NPT is the Comprehensive Nuclear-Test-Ban Treaty (CTBT), banning all nuclear explosions, but still at least awaiting entry into force pending ratification by key states.[29] The TPNW is the first of its kind, being a global, fully legally binding comprehensive agreement enshrining complete nuclear disarmament from the humanitarian perspective.
The first of those international instruments, adopted in 2017, regional NWFZs enhance regional security while strengthening norms at the universal level.[30] Rarotonga in the South Pacific, Tlatelolco in Latin America and the Caribbean, and Bangkok in Southeast Asia are some other examples.[31]
International organizations play critically important roles. The IAEA promotes safe, secure, and peaceful nuclear technologies, verifying compliance through its safeguards system. The NSG seeks to prevent proliferation by controlling exports of sensitive materials and technology. The WANO aims to enhance the safety and reliability of nuclear power plants globally.[32] Environmental protection and safety standards are incorporated. The Convention on Nuclear Safety obligates the parties to have high safety levels in a nuclear power plant. This Convention deals with the safe storage of spent fuel and radioactive waste.[33] EIAs for transparency and public involvement go in tandem with Principle 10 of the Rio Declaration.[34]
Moreover, incorporating environmental ethics into nuclear governance frameworks is essential for achieving truly holistic oversight. This means moving beyond mere compliance with legal obligations to embrace ethical responsibilities towards the environment and future generations. Ethical frameworks such as the Land Ethic, which emphasizes the intrinsic value of the natural world, and the Stewardship Ethic, focusing on responsible management of natural resources, can guide policy-making and industry practices. By integrating these ethical considerations, nuclear governance can better address issues like the long-term stewardship of radioactive waste, the preservation of biodiversity, and the rights of indigenous communities affected by nuclear activities. Ethical decision-making processes can also enhance public trust and legitimacy, as they demonstrate a commitment to values beyond short-term economic or political gains. Education and training programs that include environmental ethics can prepare industry professionals and regulators to make more informed and responsible decisions. Ultimately, embedding environmental ethics into nuclear governance can help ensure that nuclear energy development aligns with broader societal goals of sustainability, justice, and respect for the natural world.
Human rights and social justice considerations are being increasingly accepted. The right to a safe, clean, healthy, and ecologically balanced environment poses a condition whereby nuclear activities shall not harm the environment.[35] The Aarhus Convention gives power to public participation in environmental issues.[36] The concern for social justice is putting emphasis on the protection of vulnerable populations, notably indigenous peoples who are largely affected by nuclear activity.[37]
Ethical principles such as intergenerational equity require responsible nuclear material management that does not leave an undue burden for future generations, especially long-lived radioactive waste.[38] The precautionary principle applies to action that prevents harm even where there is scientific uncertainty and thus directly applies to concerns of nuclear safety and environmental protection.[39]
International obligations are grafted into national regulatory frameworks. Independent regulatory commissions are created to ensure regulatory independence or the lack of political and industry interference.[40] Legal liability measures such as the Vienna Convention on Civil Liability for Nuclear Damage set up compensation for nuclear accident victims and impose liability on parties responsible.[41]
Arguably, there is a need to draw non-state actors into the solution of nuclear security threats. The Convention on the Physical Protection of Nuclear Material (CPPNM) and its Amendment fortifies measures against nuclear terrorism.[42] United Nations Security Council Resolution 1540 requires states to take measures to prevent non-state actors from accessing weapons of mass destruction.[43]
Technological advancements must be properly controlled with climate policies recognizing its potential role in mitigating climate change while balancing those considerations with safety and waste management concerns.[44] SMRs and Generation IV reactors are actually meant for elevating safety levels and wastes of nuclear power. The nuclear energy industry is annexed to Safety Conventions such Vienna Convention on Civil Liability and Convention on Early Notification of a Nuclear Accident.
International cooperation and capacity building are decisive. Technical cooperation and transfer of experience ensure that best practices are spread widely, an issue of particular importance especially for developing countries. Crisis management and emergency preparedness capacity is enhanced through frameworks such as the Convention on Early Notification of a Nuclear Accident.[45]
In a nutshell, holistic nuclear governance means all-round approaching with complete account of legal, ethical, environmental, and social components. The treaties must be strengthened, oversight increased, transparency promoted, and public participation enabled so that human activities being responsibly conducted are put inside the track so that human rights are safeguarded and environmental integrity protected for the benefit of those who live today and tomorrow.
Policy Recommendations and the Future of Global Nuclear Governance
The future of global nuclear governance depends on addressing existing inequalities and strengthening legal frameworks while considering ethical and environmental factors. Some of the immediate policy recommendations are:
- Strengthen Commitments to Disarmament: In order to comply with NPT Article VI, nuclear-armed states have to pursue open, verifiable disarmament endeavors. This means in terms of reduction of nuclear weapons and puts a stop to further modernization to rebuild trust and keep the legitimacy alive in the accord.
- Universalize Key Treaties: Engage all nations to ratify and implement the Comprehensive Nuclear-Test-Ban Treaty and the Treaty on the Prohibition of Nuclear Weapons to strengthen international norms against nuclear testing and the possession of nuclear weapons.
- Strengthen IAEA Safeguards: Give greater powers and means to the International Atomic Energy Agency to effectively discover hidden nuclear activities. Stronger acceptance of the Additional Protocol by all would mean more inspection and verification.
- Dual-Use Technology Risk Control: Establish international regulations for dual-use technologies to clearly blur the lines between peaceful usage and weaponization. The increase of export controls and openness is sure to reduce the risk of proliferation that stems from civilian nuclear programs.
- Environmental and Social Justice: Build policies underpinning environmental justice and intergenerational equity through nuclear policy to ensure that less privileged communities are not disproportionately affected, thereby not burdening them unnecessarily by future generations for nuclear activities.
- Promote Public Participation and Openness: Increase openness in nuclear decision-making processes and actively engage civil society. Improved public participation may bring increased accountability and more informed policies.
[1] Treaty on the Non-Proliferation of Nuclear Weapons, June 12, 1968, 729 U.N.T.S. 161.
[2] Jan Ruzicka & Nicholas J. Wheeler, The Puzzle of Trusting Relationships in the Nuclear Non-Proliferation Treaty, 86 INTERNATIONAL AFFAIRS 69 (2010).
[4] Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean, February 14, 1967, 634 U.N.T.S. 281
[5] South Pacific Nuclear Free Zone Treaty, August 6, 1965, 1445 U.N.T.S. 177.
[6] Elisabeth Cardis et al., Estimates of the Cancer Burden in Europe from Radioactive Fallout from the Chernobyl Accident, 119 INT. J. CANCER 1224 (2006).
[7] Mark Z. Jacobson & Mark A. Delucchi, Providing All Global Energy with Wind, Water, and Solar Power, Part I: Technologies, Energy Resources, Quantities and Areas of Infrastructure, and Materials, 39 ENERGY POLICY 1154 (2011).
[8] Benjamin K. Sovacool, Valuing the Greenhouse Gas Emissions from Nuclear Power: A Critical Survey, 36 ENERGY POLICY 2950 (2008).
[9] M.V. Ramana, The nuclear industry’s global expansion: Weighing its prospects, 72 BULLETIN OF THE ATOMIC SCIENTISTS 228 (2016).
[10] Manfred Lenzen, Life Cycle Energy and Greenhouse Gas Emissions of Nuclear Energy: A Review, 49 ENERGY CONVERSION AND MANAGEMENT 2178 (2008).
[11] Supra note 8.
[12] ANDREW BLOWERS, THE LEGACY OF NUCLEAR POWER (Routledge 2016).
[13] Focus Europe, The World Nuclear Waste Report, (2019).
[14] Allison MacFarlane, Underlying Yucca Mountain: The Interplay of Geology and Policy in Nuclear Waste Disposal, 33 SOC. STUD. SCI. 783 (2003).
[15] UNION OF CONCERNED SCIENTISTS, Nuclear Power and Water: The Union of Concerned Scientists, (2011).
[16] U.S. ENVIRONMENTAL PROTECTION AGENCY, Environmental Impacts of Nuclear Power, (2020).
[17] Michelle T. H. van Vliet et al., Vulnerability of US and European Electricity Supply to Climate Change, 2 NATURE CLIM CHANGE 676 (2012).
[18] THE CHERNOBYL FORUM, Chernobyl’s Legacy: Health, Environmental and Socio-Economic Impacts and
Recommendations to the Governments of Belarus, the Russian Federation and Ukraine, (2006); Nuclear Energy Agency, The Fukushima Daiichi Nuclear Power Plant Accident: OECD/NEA Nuclear Safety Response and Lessons Learnt, (2013).
[19] Charles Perrow, The Next Catastrophe: Reducing Our Vulnerabilities to Natural, Industrial, and Terrorist Disasters (Princeton University Press 2011).
[20] INTERNATIONAL ATOMIC ENERGY AGENCY, Managing Environmental Impact Assessment for Construction and Operation in New Nuclear Power Programmes, (2014).
[21] Anders P. Møller & Timothy A. Mousseau, The Effects of Natural Variation in Background Radioactivity on Humans, Animals and Other Organisms, 88 Biol. Rev. Camb. Philos. Soc. 226 (2013).
[22] Doug Brugge & Rob Goble, The History of Uranium Mining and the Navajo People, 92 AMERICAN JOURNAL OF PUBLIC HEALTH 1410 (2002).
[23] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226 (July 8).
[24] Guerra and Others v. Italy, 357 Eur. Ct. H.R. 26 (1998).
[25] Nuclear Tests (Australia v. France and New Zealand v. France), 1974 I.C.J. Rep. 253 (December 20).
[26] Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), 2016 I.C.J. Rep. 833 (October 5).
[27] Supreme Court of Japan, Decision regarding the Fukushima Daiichi nuclear disaster, 2017.
[28] Supra note 1.
[29] Supra note 4.
[30] Treaty on the Prohibition of Nuclear Weapons, July 7, 2017, 729 U.N.T.S. 161.
[31] Supra note 5; South Pacific Nuclear Free Zone Treaty, August 6, 1985, 1445 U.N.T.S. 177; Treaty on the Southeast Asia Nuclear Weapon-Free Zone, December 15, 1995, 1981 U.N.T.S. 129.
[32] INTERNATIONAL ATOMIC ENERGY AGENCY, https://www.iaea.org/ (last visited November 5, 2024); WANO: LEADING NUCLEAR EXCELLENCE, https://www.wano.info/ (last visited November 5, 2024).
[33] Convention on Nuclear Safety, September 20, 1994, 1963 U.N.T.S. 293; Vienna Convention on Civil Liability for Nuclear Damage, May 21, 1963, 1063 U.N.T.S. 265; Convention on Early Notification of a Nuclear Accident, September 26, 1986, 1439 U.N.T.S 275.
[34] United Nations Conference on Environment and Development, Declaration on Environment and Development, A/CONF.151/26 (Vol. I), (August 12, 1992).
[35] Human Rights Council, The human right to a Clean, Healthy and Sustainable Environment, A/HRC/RES/48/13 (October 18, 2021).
[36] Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, June 25, 1998, 2161 U.N.T.S 447.
[37] General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295 (October 2, 2007).
[38] EDITH BROWN WEISS, IN FAIRNESS TO FUTURE GENERATIONS: INTERNATIONAL LAW, COMMON PATRIMONY, AND INTERGENERATIONAL EQUITY (United Nations University Press, 1988).
[39] Supra note 35.
[40] International Atomic Energy Agency, IAEA SAFETY STANDARDS: NUCLEAR SAFETY AND SECURITY PROGRAMME, https://www.iaea.org/resources/safety-standards (last visited November 8, 2024).
[41] Supra note 34.
[42] Convention on the Physical Protection of Nuclear Material, March 3, 1980, 1456 U.N.T.S. 101.
[43] Security Council, Resolution 1540 (2004), S/RES/1540 (2004) (April 28, 2004).
[44] INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Global Warming of 1.5 ºC (2019).
[45] Supra note 34.
