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Nuclear Off-site Emergency Preparedness and Response: Some International Legal Aspects

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Nuclear Non-Proliferation in International Law - Volume III


The accident at the Fukushima-Daiichi nuclear power plant, much like Chernobyl before, is a stark reminder of the critical role of off-site emergency preparedness and response (EPR) in nuclear accident management notwithstanding continuous improvements in nuclear safety worldwide. EPR is a matter of intrinsic international concern, not only between neighboring States, but globally as shortcomings in EPR anywhere tend to undermine confidence in nuclear safety everywhere. Post-Fukushima, EPR therefore has been a focal point of international regulatory attention which this Chapter sets out to describe in the context of nuclear accidents with radiological off-site effects. The Chapter first discusses the international normative setting for EPR, principally the IAEA-centered framework (including relevant conventions, safety standards, operational arrangements and services). It then addresses some of the major international public policy and legal challenges that have presented themselves in the aftermath of Fukushima: The drive to harmonize EPR and the intrinsic difficulties in reaching that goal; transboundary emergency notification/communication arrangements bilaterally, regionally and globally, that are insufficiently anchored to a firm legal basis; enhanced independent peer review and regular testing to ensure quality and reliability of EPR plans; and stronger State support for IAEA’s international emergency assistance mechanism. In summarizing how the international community—concerned States, international organizations, the nuclear industry and other stakeholders—has reacted to these issues, the author concludes that while EPR notionally remains, of course, a national responsibility, many of its key aspects are increasingly being ‘internationalized.’

Eberhard Deutsch Chair for Public International Law, Tulane University Law School, New Orleans, LA.

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  1. 1.

    That is an accident beyond the nuclear power plant’s design basis. A design basis accident or ‘maximum credible accident’ involves ‘accident conditions against which a facility is designed according to established design criteria, and for which the damage to the fuel and the release of radioactive material are kept within authorized limits.’ See IAEA 2013a, NEA 2002.

  2. 2.

    See, e.g., Institute of Nuclear Power Operations 2012; and Western European Nuclear Regulators’ Association (WENRA) 2014, 33–35.

  3. 3.

    Thus the Nuclear Safety Review 2014 concludes that the ‘nuclear industry needs to continue focusing resources on improving severe accident management capabilities because this capability is the key to the success of defense in depth level 4—the last line of defense prior to the on-set of significant off-site consequences’. IAEA 2014, 21. See also the presentations and discussions at the IAEA Experts’ Meeting to Discuss Severe Accident Management after Fukushima, 14 March 2014, at; and IAEA 2015a.

  4. 4.

    See, e.g., IAEA 2012, para 17: ‘The displacement of people and the land contamination after the Fukushima Daiichi accident calls for all national regulators to identify provisions to prevent and mitigate the potential for severe accidents with off-site consequences.’

  5. 5.

    See 6th Review Meeting of the Contracting Parties to the Convention on Nuclear Safety, 24 March–4 April 2014 Vienna, Austria, Doc. CNS/6RM/2014/11 Final, Annex 1: ‘Nuclear power plants shall be designed and constructed with the objectives of preventing accidents and, should an accident occur, mitigating its effects and avoiding releases of radionuclides causing long-term off-site contamination. In order to identify and implement appropriate safety improvements, these objectives shall also be applied to existing plants.’

  6. 6.

    Vienna Declaration on Nuclear Safety on Principles for the Implementation of the Objective of the Convention on Nuclear Safety to Prevent Accidents and Mitigate Radiological Consequences, Doc. CNS/DC/2015/2/Rev.1, Annex 1, February 9, 2015.

  7. 7.

    Id., para 2.

  8. 8.

    See Article 8(a) of the Council Directive 2014/87/EURATOM of 8 July 2014 amending Directive 2009/71/EURATOM establishing a Community framework for the nuclear safety of nuclear installations, [2014] OJ L 219/42.

  9. 9.

    See, e.g., CNS, Article 18(i) which requires installation States to ensure that ‘the design and construction of a nuclear installation provides for several reliable levels and methods of protection (defense in depth) against the release of radioactive materials.’ Thus ‘[a] key to a defense-in-depth approach is creating multiple independent and redundant layers of defense to compensate for potential failures and external hazards so that no single layer is exclusively relied on to protect the public and the environment.’ See U.S. Nuclear Regulatory Commission 2011, 15.

  10. 10.

    For further discussion see IAEA (1996).

  11. 11.

    The last objective of the defense-in-depth approach to nuclear safety ‘is mitigation of the radiological consequences of significant external releases through the offsite emergency response’. See, e.g., Council Directive, supra note 8, preamble, para 17.

  12. 12.

    Some critics, however, note that ‘the use of this term is inappropriate for any nuclear power generating technology’. For even advanced water reactor systems, the PIUS (Process Inherent Ultimate Safety) reactor, or Generation IV—intrinsically safe nuclear high temperature gas-cooled reactor (HTGR) technology, will pose some risk. For a discussion, see, e.g., Ragheb 2015.

  13. 13.

    See, e.g., the conclusions of NEA/CNRA/CSNI 2014, 11: ‘Recognising that all levels of DiD are important in providing adequate protection to the public and enhancing nuclear safety including Level 4 mitigation and Level 5 protective measures (Off-site emergency response and accident management) set down for offsite release.’

  14. 14.

    See, e.g., IAEA 2015b, 74–93; and NEA 2016, 15.

  15. 15.

    See, e.g., IAEA 2001, 2001, 3–5; and NEA 2012, 121–127.

  16. 16.

    Thus many the shortcomings of Japan’s EPR performance following the accident at Fukushima are not the exception to the rule, but rather symptomatic of deficiencies elsewhere on the part of the industry and regulatory authorities generally. See NEA/CNRA/CSNI 2014, at 17; and IAEA 2015b, at 7–15 and 96–99. For further details, see IAEA 2015b, Technical Volume 3/5: Emergency Planning and Response.

  17. 17.

    IAEA 2011, 3–4.

  18. 18.

    IAEA 2012a, para 21.

  19. 19.

    See IAEA 2015a, Chairman’s Summary.

  20. 20.

    See, generally, the relevant summary in Progress in the Implementation of the IAEA 2015c, para 47. As regards institutional innovation, note, for example, the emergence of an Emergency Preparedness and Response Standards Committee (EPReSC) within the Agency’s Commission on Safety Standards. See id. at 2.

  21. 21.

    See IAEA 2015d.

  22. 22.

    IAEA 2015e, 47. See also ENSREG 2015 (noting that although ‘improvements in emergency preparedness and response had been made since the previous ENSREG conference … the question of whether enough had been done remained’); and Nuclear Transparency Watch 2015, 8–11.

  23. 23.

    See, generally, the IAEA 2011, 1: ‘[I]t is important to note that …[t]he responsibility for ensuring the application of the highest standards of nuclear safety and for providing a timely, transparent and adequate response to nuclear emergencies … lies with each Member State and operating organization.’

  24. 24.

    Several scenarios might give rise to such a situation as, for example, when a State’s EPR measures are clearly at odds with neighboring countries’ EPR approaches or inconsistent with applicable international standards. For further discussion see infra text at notes 128–132. A national EPR program would be similarly problematic if an installation State suffers from what might be called the ‘embarking country problem’—worrisome deficiencies in regulatory competences, including in the field of EPR, either on account of insufficient resources for, or inattention to, the requisite regulatory infrastructure. As to the continued existence of this problem, see IAEA 2014, at 43.

  25. 25.

    The latter includes, notably, the protection of on-site emergency workers.

  26. 26.

    See IAEA 2007a, 68–69: ‘The period of time from the detection of conditions warranting an emergency response until the completion of all the actions taken in anticipation of or in response to the radiological conditions expected in the first few months of the emergency. This phase typically ends when the situation is under control, the off-site radiological conditions have been characterized sufficiently well to identify where food restrictions and temporary relocation are required, and all required food restrictions and temporary relocations have been implemented.’ ‘During these phases the source and releases from the plant have been brought under control. Also, environmental measurements of radioactivity and dose models are available to project doses to members of the public and base decisions on additional protective actions such as food and water interdictions.’ National Research Council 2014, 197.

  27. 27.

    ‘Post-accident recovery includes: the remediation of areas affected by the accident; the stabilization of damaged on-site facilities and preparations for decommissioning; the management of contaminated material and radioactive waste arising from these activities; and community revitalization and stakeholder engagement.’ See IAEA 2015b, 15.

  28. 28.

    For a recent analysis see instead Handl 2015, 209–19.

  29. 29.

    For a summary of EPR-related features of the IAEA-centered international legal framework, see also Rautenbach et al. 2006, 9–13.

  30. 30.

    Some related international normative principles and standards bearing on human rights or procedural entitlements, such as the so-called Waseda Recommendations on human rights and medical management in nuclear disasters, or the UN ECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), are part of this normative matrix also. See Economic Commission for Europe 2013. However, they will not be specifically discussed unless they are of direct and major significance to the issues under review.

  31. 31.

    IAEA Doc. INFCIRC/335, 18 November 1986.

  32. 32.

    IAEA Doc. INFCIRC/336, 18 November 1986.

  33. 33.

    For a discussion, see e.g., Moser 2010; Adede 1987.

  34. 34.

    Article 1, para 1. For further discussion of the notification threshold issue, see infra text at notes 177–206.

  35. 35.

    See Article 2.

  36. 36.

    See Article 5.

  37. 37.

    See Article 4. Note, however, the IAEA’s recent launch of an International Radiation Data Monitoring System (IRMIS), a mechanism for reporting these specific measurements from the fixed monitoring stations worldwide.

  38. 38.

    See ECA, Article 1, para.

  39. 39.

    Article 2, paras 1 and 3.

  40. 40.

    EAC Article 2, para 4.

  41. 41.

    Article 4.

  42. 42.

    Article 1, para 3.

  43. 43.

    Article 5, para (a).

  44. 44.

    Article 5, paras (b) and (c).

  45. 45.

    IAEA Doc. INFCIRC/449, 5 July 1994.

  46. 46.

    IAEA Doc. INFCIRC/546, 24 December 1997.

  47. 47.

    See infra §

  48. 48.

    Thus Article 1, para (iii) lists among the objectives of the Convention the prevention of accidents with radiological consequences and to mitigate such consequences should they occur.

  49. 49.

    CNS, Article 16, paras 1 and 2, respectively.

  50. 50.

    Article 16, para 3.

  51. 51.

    (iii) lists among the Convention’s objectives ‘to mitigate their consequences should they occur during any stage of spent fuel or radioactive waste management’.

  52. 52.

    1. Each Contracting Party shall ensure that before and during operation of a spent fuel or radioactive waste management facility there are appropriate on-site and, if necessary, off-site emergency plans. Such emergency plans should be tested at an appropriate frequency.

    2. Each Contracting Party shall take the appropriate steps for the preparation and testing of emergency plans for its territory insofar as it is likely to be affected in the event of a radiological emergency at a spent fuel or radioactive waste management facility in the vicinity of its territory.

  53. 53.

    See IAEA 2016.: ‘The Safety Fundamentals … present the fundamental safety objective and principles of protection and safety and provide the basis for the safety requirements’; ‘Safety Requirements establish the requirements that must be met to ensure the protection of people and the environment, both now and in the future. The requirements are governed by the objective and principles of the Safety Fundamentals’; and ‘Safety Guides provide recommendations and guidance on how to comply with the safety requirements, indicating an international consensus that it is necessary to take the measures recommended (or equivalent alternative measures)’.

  54. 54.

    For a more details, see IAEA 2015b, Technical Volume 3/5, at 123–126.

  55. 55.

    IAEA Statute, Article III, para 6.

  56. 56.

    Recognizing the importance of the cross-cutting nature of its EPR work, the Agency recently established a new Emergency Preparedness and Response Standards Committee (EPReSC). See Measures to strengthen international cooperation in nuclear, radiation, transport and waste safety, IAEA Doc. GC(59)/RES/9, September 2015, para 31.

  57. 57.

    IAEA 2015d.

  58. 58.

    IAEA Safety Guide, No. GS-G-2.1 (2007).

  59. 59.

    IAEA Safety Guide, No. GSG-2 (2011).

  60. 60.

    IAEA General Safety Requirements Part 3, No. GSR Part 3 (2014).

  61. 61.

    For further details, see

  62. 62.

    IAEA 2015d, preface.

  63. 63.

    IAEA 2000.

  64. 64.

    IAEA, 2012b.

  65. 65.

    Id. at 2.

  66. 66.

    See Joint Radiation Emergency Management Plan of the International Organizations, Doc. EPR–JPLAN (2013). JPLAN has been developed, maintained and sponsored by the IAEA together with the member organizations making up Inter-Agency Committee on Radiological and Nuclear Emergencies (IACRNE).

  67. 67.

    Id. at v.

  68. 68.

    IAEA 2013b, foreword.

  69. 69.

    See, id. at 9. For further discussion, see infra text at notes….

  70. 70.

    IACRNE provides a similar coordinating mechanism for those international organizations whose functions or responsibilities include as well EPR.

  71. 71.

    IEC functions focus on EPR-related safety standards; appraisal services; EPR capacity building; the inter-agency EPR framework; and emergency assistance. See IAEA, Incident and Emergency Center, at

  72. 72.

    Report on the Seventh Meeting of Representatives of Competent Authorities identified under the Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, Vienna, Austria, 19–23 May 2014, Doc. CAM/REP/2014, TM-4538610, July 24, 2014.

  73. 73.

    Meschenmoser, IAEA Launches Self-Assessment Tool for Emergency Preparedness, 17 September 2105,

  74. 74.

    See further infra § 11.3.3.

  75. 75.

    See IAEA 2012b, at 19–24.

  76. 76.

    So-called Convex1 exercises.

  77. 77.

    So-called ConvEx-2 exercises.

  78. 78.

    ConvEx-3 exercises.

  79. 79.

    The 2011 Action Plan on Nuclear Safety calls upon the Secretariat ‘… to provide Member States, international organizations and the general public with timely, clear, factually correct, objective and easily understandable information during a nuclear emergency on its potential consequences, including analysis of available information and prognosis of possible scenarios based on evidence, scientific knowledge and the capabilities of Member States’. IAEA 2011, 6 (emphasis added). Obviously, ‘analysis and prognosis’ is a function that is antecedent to, thus distinguishable from, the communication of relevant accident information. See also IAEA 2015f, 31.

  80. 80.

    See infra text at notes 219–226.

  81. 81.

    See IAEA 2015d, Preface.

  82. 82.


  83. 83.

    See above, Chap. 10 (Bothe), n 37 and accompanying text. Indeed, it is generally agreed that ‘IAEA safeguards reflect an international consensus on what constitutes a high level of safety protecting people and the environment from harmful effects of ionizing radiation’.

  84. 84.

    A case in point is, e.g., Durand-Poudret 2015, at 38–39.

  85. 85.

    CNS, Preamble, para viii; and Joint Convention, Articles 4 and 11, respectively. In other words, they either inform the interpretation of the installation State’s conventional obligations because they must be deemed expressly incorporated as such or, alternatively, because they generally reflect the degree of due diligence the installation State will have to apply in a particular situation.

  86. 86.

    See, e.g., Handl 2003.

  87. 87.

    As to their latest versions, see Guidelines regarding National Reports under the Convention on Nuclear Safety, IAEA Doc. INFCIRC/572/Rev.5, 16 January 2015; and Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management: Guidelines regarding the Form and Structure of National Reports, IAEA Doc. INFCIRC/604/Rev.3, 18 December 2014.

  88. 88.

    Report of Seventh Meeting of the Representatives of Competent Authorities Identified under the Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, IAEA Doc. CAM/REP/2014, TM-45386, July 24, 2014, at 7.

  89. 89.

    ENCO Report 2013a, 11.

  90. 90.

    See id.

  91. 91.

    NEA’s current membership consists of 31 countries in Europe, North America and the Asia-Pacific region.

  92. 92.

    See OECD/NEA, The Strategic of the Nuclear Energy Agency 2011–2016, 21.

  93. 93.

    Kovan, NEA’s role in radiological protection—Keeping things real, in Nuclear News. 31 July 2005: ‘The International Nuclear Emergency Exercises (INEX) program was one of the NEA’s responses to the Chernobyl accident. … The first exercises dealt with the urgent early phase of an accident, within days of the occurrence of the release, concerned primarily with protecting people through such things as giving iodine, providing shelter, and evacuation.’

  94. 94.

    Id. at 32.

  95. 95.

    See OECD/NEA, Working Party on Nuclear Emergency Matters, INEX 5 Exercise on Notification, Communication and Interfaces Related to Catastrophic Events Involving Radiation or Radiological Materials, Doc. NEA/CRPPH/INEX(2014)3, 13 November 2014.

  96. 96.

    This cooperation began, of course, in 1957 with the adoption of the Euratom Treaty. For its latest version see the Consolidated version of the Treaty establishing the European Atomic Energy Community, 2012/C 327/01.

  97. 97.

    Council Directive 2014/87/Euratom of 8 July 2014 amending Directive 2009/71/Euratom establishing a Community framework for the nuclear safety of nuclear installations.

  98. 98.

    See European Nuclear Safety Regulators Group, Peer review report: Stress tests performed on European nuclear power plants (2012).

  99. 99.

    Id. at 49.

  100. 100.

    Council Directive 2013/59/EURATOM of 5 December 2013 laying down basic safety standards for protection against the dangers arising from exposure to ionising radiation, and repealing Directives 89/618/Euratom, 90/641/Euratom, 96/29/Euratom, 97/43/Euratom and 2003/122/Euratom.

  101. 101.

    These include basic protective measures, emergency information, environmental monitoring, emergency management systems, response plans and international cooperation. See Preambular Articles 41–49, Articles 69–71, 97–98 and Annexes XI and XII.

  102. 102.

    It will repeal the current Basic Safety Standards Directive 96/29/Euratom by 6 February 2018.

  103. 103.

    See Council Conclusions on Off-site Nuclear Emergency Preparedness and Response, Doc. 14618/15, 15 December 2015, Annex, 4.

  104. 104.

    See, e.g., ANSN Progress Report 2013, 36–40.

  105. 105.

    See, e.g., European Commission-funded study of the feasibility of enhancing regional cooperation within the Association of Southeast Asian Nations (ASEAN) on radiological and nuclear emergency preparedness and response, 16 February 2016.

  106. 106.

    See Summary of 1st Meeting of Asean Network of Regulatory Bodies on Atomic Energy (ASEANTOM), Phuket, Thailand, 3–4 September, 2013; and Economic Research Institute for ASEAN and East Asia, The 2nd WG Meeting on ‘Study for Building a Guideline and a Cooperative Framework in East Asian Countries in case of Radioactive Emergency’, 17 April 2015, at; and News Summary, ‘EU supports enhancement of regional cooperation on Radiological and Nuclear Emergency Preparedness and Response in South-East Asia’, 17 February 2016, at

  107. 107.

    See T. Murakami 2012; Trajano 2015.

  108. 108.

    See Armonización de los criterios reguladores para países de la región iberoamericana en la preparación y respuesta a emergencias radiológicas y nucleares,

  109. 109.

    See IAEA 2014, para 124.

  110. 110.

    See Mahjoub 2015.

  111. 111.

    IAEA, Developing a regional emergency response plan in the Gulf region with the IAEA’s technical cooperation support,

  112. 112.

    These include Scandinavia, Finland and Iceland. For details see The Nordic Manual (NORMAN): Co-operation between the Nordic Authorities in Response to and Preparedness for Nuclear and Radiological Emergencies and Incidents, Revised August 2015.

  113. 113.

    See Holo 2016.

  114. 114.

    An example of this is the Nordic recommendations on operational intervention levels in a nuclear emergency. See The Radiation Protection Authorities in Denmark, Finland, Iceland, Norway and Sweden, Nordic Intervention Criteria for Nuclear or Radiological Emergencies—Recommendations (2001); and Protective Measures in Early and Intermediate Phases of A Nuclear or Radiological Emergency: Nordic Guidelines and Recommendations (2014).

  115. 115.

    WANO was launched in the wake of the Chernobyl accident for the purpose of maximizing the safety and reliability of commercial nuclear powers plants world-wide.

  116. 116.

    See WANO after Fukushima: Strengthening Global Nuclear Safety, 19 Inside WANO No. 3, 4 (2011).

  117. 117.

    ENCO Report 2013a, viii.

  118. 118.

    Id. at v.

  119. 119.

    Id. at viii. The recommended measures include, inter alia, the expansion of EU-wide peer review to cover EPR; greater harmonization across Europe in respect of emergency planning zones and the introduction/removal of protective measures; as well as the development of a guidance document or codes of best practice regarding critical off-site EPR issues, such as cross-border arrangements. Id. at vi.

  120. 120.


  121. 121.

    Article 8e.1 of the Directive.

  122. 122.

    ENSREG 2015, 14: ‘ENSREG also agreed that self-assessments should be based on IAEA IRRS practices, noting that IRRS missions look beyond the scope of the CNS and the Joint Convention obligations and Full Scope IRRS missions are beyond the scope of the Directive’. See also Memorandum of Understanding between ENSREG and the IAEA for International Peer Review Missions to the EU Member States, June 28, 2011.

  123. 123.

    For further discussion, see infra § 11.3.1.

  124. 124.

    International Conference on Global Emergency Preparedness and Response, 19–23 October 2015, Vienna Austria, Conference Report, Annex 2: President’s Summary, 43, at 45. They provide more than the basic international framework for EPR, but ‘a solid basis for achieving … harmonization’. IAEA 2015e, para 197.

  125. 125.

    For an acknowledgement see, e.g., Memorandum of Understanding ENSREG-IAEA, supra note 122, Article 4(1).

  126. 126.

    Measures to strengthen international cooperation in nuclear, radiation, transport and waste safety—Resolution adopted on 22 September 2011 during the seventh plenary meeting, IAEA Doc. GC(55)RES/9, para 83 (2011). Emphasis added. See also Measures to strengthen international cooperation in nuclear, radiation, transport and

    waste safety, Resolution adopted on 17 September 2015 during the eighth plenary meeting, IAEA Doc. GC(59)/RES/9 (2015), preamble, para (bb).

  127. 127.

    IAEA 2015e, para 197.

  128. 128.

    See, e.g., Handl 1988, at 58–59. Consider for example the maximum contamination values set for iodine-131 in milk. The United Kingdom and Sweden adopted a value of 2000 bequerels, whereas in Poland the limit was 1000, in Hungary 500, in Austria 370, and in the State of Hesse, Germany, a mere 20. As to the possibility of different protective standards within one and the same country, see, e.g., McMahon 2011.

  129. 129.

    See ‘U.S. urges Americans within 50 miles of Japanese nuclear plant to evacuate; NRC chief outlines dangerous situation’, The Washington Post, 16 March 2011, at

  130. 130.

    See The National Diet of Japan 2012, 38.

  131. 131.

    See also HERCA: Emergency Preparedness and Response,

  132. 132.

    See, e.g., French and Agryris 2014, 483; ENCO Report 2013a, xiii.

  133. 133.

    ‘Since its creation, HERCA identified the need for a harmonised approach on Emergency Preparedness and Response (EP&R) in Europe as a top priority.’ HERCA, Emergency Preparedness and Response, at

  134. 134.

    WENRA is a non-governmental organization comprised of the heads and senior staff members of all the national nuclear regulatory authorities of European countries with nuclear power plants.

  135. 135.

    HERCA-WENRA 2014, 7.

  136. 136.

    ENCO Report 2013a, xii.

  137. 137.

    HERCA-WENRA 2014, 15; and ENCO Report 2013a, xii–xiii.

  138. 138.

    See, e.g., Preparedness and Response for a Nuclear or Radiological Emergency, IAEA Safety Requirements, No. GS-R-2, 37 (2002); and Measures to Strengthen International Cooperation in Nuclear, Radiation, Transport and Waste Safety, IAEA Doc. GC(55)/RES/9, September 2011, para 82. IAEA 2015e, para 197, reiterates that both practical insights gained from emergency exercises and from discussion in EPR expert group meetings continue to confirm the importance of harmonized EPR arrangements worldwide.

  139. 139.

    CNS, Article 16, para 3. Articles 6(iv) and 13(iv) of the Joint Convention contain similar provisions.

  140. 140.

    For example, at Sixth Review Meeting of the Parties to the CNS in 2014, contracting Parties ‘noted the advantage of harmonizing the approach to severe accident analysis and the resulting emergency preparedness and response measures… [as well as] the importance of harmonizing protective measures and trade measures to be taken during an emergency’. Similarly, some contracting parties urged a complete and transparent exchange of information concerning possible transboundary effects of accidents ‘as this would facilitate the development of appropriate harmonized emergency preparedness and response measures’. See 6th Review Meeting of the Contracting Parties to the Convention on Nuclear Safety, 24 March–4 April 2014, Vienna, Austria, Summary Report IAEA Doc. CNS/6RM/2014/11_Final, paras 28–29.

  141. 141.

    See, e.g., IAEA 2015d, paras 5.39 (requiring transboundary coordination where the emergency planning zone or distance extends across the border); and 6.13–6.14 (requiring that ‘governments ensure that arrangements are in place for the coordination of preparedness and response… at the international level’, as appropriate).

  142. 142.

    ‘Threat category V area’ is an ‘area within the food restrictions planning radius, [i.e.,] the distance that could be affected by emergencies at a threat category I or II facility resulting in levels of ground deposition necessitating food restrictions consistent with international standards.’ IAEA 2003, 42.

  143. 143.

    IAEA 2015d, para 6.15.

  144. 144.

    See, e.g., the ENCO Report 2013a, ix, which addressing the situation in the EU notes that ‘Member States often take different approaches to the practical implementation of essentially the same principles and objectives for off-site EP&R’.

  145. 145.

    HERCA, Guidance for Bilateral Arrangements, November 2015, 5. See also International Conference, supra note 124, at 12, which refers to cooperation among the NORDIC countries and at the level of the European Union as ‘two examples of good regional cooperation in EPR’ that promote trust and increase mutual understanding.

  146. 146.

    For a discussion of such procedural obligations in the context of nuclear power activities, see, e.g., Handl 1992, 74–91.

  147. 147.

    ‘For an emergency exposure situation …, the level of dose, risk or activity concentration above which it is not appropriate to plan to allow exposures to occur and below which optimization of protection and safety would continue to be implemented.’ IAEA, Radiation Protection and Safety of Radiation Sources: International Basic Safety Standards, General Safety Requirements Part 3, No. GSR Part 3, 415 (2014).

  148. 148.

    Such as ‘operational intervention levels’. OILs are defined as the values of environmental measurements, in particular dose rate measurements, which set the threshold for the initiation of the different parts of the emergency plan and the taking of protective measures. See IAEA 2015d, para 4.28.

  149. 149.

    I.e. in response to changing plant conditions and environmental monitoring results. See also Georges Piller, HERCA-WGE’s Chairman, Topical Workshop on More Effective Emergency Preparedness & Response Arrangements at the EU level under the BSS Directive, European Commission, Brussels, 3 December 2015, at

  150. 150.

    See the HERCA-WENRA 2014, 16.

  151. 151.

    See Council Conclusions, supra note 103, at 2, 6.

  152. 152.

    See IAEA 2015d, para 6.14.

  153. 153.

    ‘[P]lanning areas’ nature and size are an important basis for the implementation of protective measures and the development of strategies.’ Planning areas for emergency response near nuclear power plants: Recommendation by the German Commission on Radiological Protection 8 (2014).

  154. 154.

    ‘Facilities, such as nuclear power plants, for which on-site events (including very low probability events) are postulated that could give rise to severe deterministic health effects off the site, or for which such events have occurred in similar facilities.’ IAEA 2007b, 11.

  155. 155.

    See id., Annex V, 95–103.

  156. 156.

    The principal goal of measures in the PAZ is to prevent severe deterministic effects, i.e., effects that can be related directly to the radiation dose received. The severity increases as the dose increases. A deterministic effect typically has a threshold below which the effect will not occur. The effect is deemed severe ‘if it is fatal or life-threatening or results in a permanent injury that reduces the quality of life.’ See IAEA 2013c, 129.

  157. 157.

    IAEA 2015d, 29–31. Measures to be taken in the UPZ after a release of radioactivity, aim at reducing the risk of stochastic effects, i.e., effects that occur on a random basis independent of the size of dose. While the effect has no threshold, the chances of seeing the effect increase with dose.

  158. 158.

    Id. at paras 5.38 (iii)–(iv).

  159. 159.

    IAEA 2013c, 20.

  160. 160.

    Luxemburg, Germany, Croatia, Romania, Hong Kong and Canada are among several countries with territory within the EPZ of neighboring countries.

  161. 161.

    The ENCO Report, while warning against an over-simplistic equation of size of EPZ with level of protection afforded, nevertheless admits that such conclusions are inevitable and therefore will be a source of public and political concern”. See ENCO Report 2013a, 25. See also Planning areas for emergency response near nuclear power plants, supra note 153, at 15.

  162. 162.

    IAEA 2015b, Technical Volume 3/5: Emergency Preparedness and Response, 96.

  163. 163.

    As is well-known, under deteriorating conditions at the stricken Fukushima-Daiichi plant, Japanese authorities were repeatedly forced to expand the initial evacuation area out to 20 km. Eventually, protective measures were ordered also for residents in an area between 20 and 30 km from the plant: Although at first only ordered to shelter-in-place, these residents were eventually urged to voluntarily evacuate. See The National Diet of Japan 2012, 38. However, the accident produced also radioactive hotspots further afield. For example, at Iitate, 40 km from the plant, levels of caesium-137 were as high as 18 MBq/m2, well above the level at which evacuation would be deemed advisable. See ‘IAEA says Fukushima fallout warrants more evacuation’, New Scientist, 31 March 2011,

  164. 164.

    See IAEA 2015b, at 84–90.

  165. 165.

    See generally NEA/CNRA/CSNI (2014), at 28. See further Office for Nuclear Regulation, Japanese Earthquake and Tsunami: Implications for the UK Nuclear Industry, Final Report, HM Chief Inspector of Nuclear Installations, September 201, pp. 144–145.

  166. 166.

    Main Conclusions from the Workshop on Sharing Lessons Identified from Past Responses and Exercises, 23–27 April 2012, Vienna, in IAEA 2013, Annex A, 40.

  167. 167.

    HERCA-WENRA 2014, 9. More specifically, the study recommends urgent protective actions as well as a minimum common level of preparation for action, namely evacuation up to 5 km around nuclear power plants, and sheltering and iodine thyroid blocking (ITB) up to 20 km; and a general strategy to extend evacuation up to 20 km, and sheltering and ITB up to 100 km.

  168. 168.

    See IAEA 2013c, 22.

  169. 169.

    See 10CFR § 50.47 (c) 2: ‘Generally, the plume exposure pathway EPZ for nuclear power plants shall consist of an area about 10 miles (16 km) in radius and the ingestion pathway EPZ shall consist of an area about 50 miles (80 km) in radius.’

  170. 170.

    See, e.g., G. Handl 1992, at 30–35; and J. Kubanyi, et al., Risk Informed Support of Decision Making in Nuclear Power Plant Emergency Zoning: Generic Framework towards Harmonizing NPP Emergency Planning Practices, JRC Scientific and Technical Reports 21–24 (2008).

  171. 171.

    See IAEA 2013c, 22. These calculations are for nuclear power plants with a capacity of more than 1 GW (th). The U.S. Nuclear Regulatory Commission rejected a petition for rulemaking which sought an increase in the size of the present plume exposure pathway zone from 10 to 25 miles, establishing a new zone but with less stringent requirements from 25 to 50 miles around reactors, expanding the existing ingestion pathway zone from 50 to 100 miles. See Petition for Rulemaking to Improve Emergency Planning Regulations (10 C.F.R. 50.47), The Commission maintained that ‘the current size of the emergency planning zones … [was] appropriate for existing reactors and that emergency plans … [would] provide an adequate level of protection of the public health and safety in the event of an accident at a nuclear power plant’. See

  172. 172.

    ENCO Report 2013a, 25.

  173. 173.

    Such as its dose-related approach based on representative source-terms. See Planning areas for emergency response near nuclear power plants, supra note 153, at 15; and see generally IAEA 2007b.

  174. 174.

    National Research Council 2014, 216.

  175. 175.

    NEA 2016, 26.

  176. 176.

    See, e.g., ENCO Report 2013b, 88 (noting the absence in most European countries of any planning zones for purposes of food restrictions).

  177. 177.

    See Council Decision of 14 December 1987 on Community arrangements for the early exchange of information in the event of a radiological emergency (87/600/Euratom); and Agreement between the European Atomic Energy Community (Euratom) and non-member States of the European Union on the participation of the latter in the Community arrangements for the early exchange of information in the event of radiological emergency (Ecurie), Official Journal C 102, 29/04/2003.

  178. 178.

    Of course, the very quality (timeliness, comprehensiveness and accuracy) of the data transmitted and the mode of transboundary communication. However, a detailed analysis of these various factors would far exceed the necessarily limited scope of this paper. For a discussion see instead, IAEA 2012b.

  179. 179.

    For a discussion of the European system, see infra text at notes 207–215.

  180. 180.

    Namely, IAEA’s Unified System for Information Exchange in Incidents and Emergencies (USIE). The IAEA website at describes USIE as ‘an IAEA web portal for Contact Points of States Parties to the Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in Case of a Nuclear Accident or Radiological Emergency and of IAEA Member States to exchange urgent information during nuclear and radiological incidents and emergencies, and for officially nominated INES National Officers to post information on events rated using the International Nuclear and Radiological Event Scale (INES).” See further HERCA, Emergency Preparedness: HERCA-Approach for a better cross-border coordination of protective actions during the response in the early phase of a nuclear accident; development and practical testing 15 (2014),

  181. 181.

    See, e.g., Council of the European Union, Report on the Implementation of the Obligations under the Convention on Nuclear Safety—6th Review Meeting of the Contracting Parties, Doc. 13691/13, 17 September 2013, 42 (discussing the EURDEP’s use on a global level by the IAEA).

  182. 182.

    ‘This Convention shall apply in the event of any accident involving facilities or activities … from which and which has resulted or may result in an international transboundary release that could be of radiological safety significance for another State.’

  183. 183.

    Thus delays in transboundary or international notifications have been a rather more common phenomenon, the most notorious example of which is, of course, the USSR’s failure to notify the international community for several days of the accident at the Chernobyl nuclear power plant which in turn prompted the launch of the Convention on Early Notification.

  184. 184.

    To this effect see already Lang 1988; and Pelzer 2010, at 80.

  185. 185.

    See Report of the Sixth Meeting of the Representatives of Competent Authorities identified under the Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in Case of a Nuclear Accident or a Radiological Emergency, IAEA Doc. CAM/REP/2012, TM-41005.

  186. 186.

    See id. at 42 and 48, respectively.

  187. 187.

    Id. at 45–46.

  188. 188.

    But see text at notes 217–218 for a discussion of IAEA’s recommendations regarding the timeliness of emergency notifications.

  189. 189.

    For details see G Handl 1992 at 67–73.

  190. 190.

    Abkommen zwischen der Republic Österreich und der Tschechoslowakischen Sozialistischen Republik zur Regelung von Fragen gemeinsamen Interesses im Zusammenhang mit Kernanlagen, 18 November 1982, BGBl. Nr. 208/1984.

  191. 191.

    Article 6, paras 1–2. Translation provided.

  192. 192.

    Abkommen zwischen der Regierung der Republik Österreich und der Regierung der Tschechoslowakischen Sozialistischen Republik zur Regelung von Fragen gemeinsamen Interesses im Zusammenhang mit der nuklearen Sicherheit und dem Strahlenschutz, 25. Oktober 1989, BGBl. III 565/1990., Article 1, para 1.

  193. 193.

    Id. Article 2, para 1.

  194. 194.

    Id. Article 2, para 2.

  195. 195.

    Id. Article 3, para 1.

  196. 196.

    Protokoll zwischen der der Regierung der Republik Österreich und der Regierung der Tschechischen Republik zur Änderung des Abkommens zwischen der Regierung der Republik Österreich und der Regierung der Tschechoslowakischen Sozialistischen Republik zur Regelung von Fragen gemeinsamen Interesses im Zusammenhang mit der nuklearen Sicherheit und dem Strahlenschutz, December 20, 2007, BGBl. III 71/2008.

  197. 197.

    Article 2, para 3. Emphasis added. However, this provision is subject to the parties’ adoption of specific implementing steps which appear to have yet to be agreed upon.

  198. 198.

    Notenwechsel zu den Vereinbarungen zur Durchführung des Abkommens zwischen der Regierung der Republik Österreich und der Regierung der Tschechischen Republik zur Regelung von Fragen gemeinsamen Interesses im Zusammenhang mit der nuklearen Sicherheit und dem Strahlenschutz 1), geändert durch das Protokoll vom 20. Dezember 2007, BGBl. III Nr. 68/2010.

  199. 199.

    Vereinbarung zwischen dem Bundesministerium für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft, Abteilung Strahlenschutz und dem Staatsamt für Nukleare Sicherheit über den Austausch von Daten der Notfallsysteme ESTE und TAMOS vom 10. März 2004. This Agreement was replaced in 2011 with a broader bilateral arrangement for the exchange of information and harmonization of nuclear emergency responses. See Vereinbarung betreffend den Datenaustausch von ESTE- und TAMOS-Codes, BGBl. III 148/2011.

  200. 200.

    Vereinbarung zwischen dem Bundesministerium für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft und dem Staatsamt für Nukleare Sicherheit über den Austausch von Gamma-Dosisleistungsdaten aus den Strahlungsfrühwarnsystemen, die von der Regierung der Republik Österreich und der Regierung der Tschechischen Republik betrieben werden, vom 20. November 2001.

  201. 201.

    Die Vereinbarung zwischen dem Bundesministerium für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft und dem Staatsamt für Nukleare Sicherheit über die Errichtung und den Betrieb einer österreichischen automatischen Strahlungsüberwachungsstation in der Tschechischen Republik vom 25. und 27. April 2001.

  202. 202.

    Protokoll der Verhandlungen zwischen den Regierungen der Tschechischen Republik und der Republik Österreich, geführt von Ministerpräsident Zeman und Bundeskanzler Schüssel im Beisein von EU-Kommissar Verheugen, December 2000. The agreement called for the establishment of an information hotline between the two countries as well as an early warning exchange system, and permitted Austria to set up its own radiation monitoring station in the immediate vicinity of the Temelín power plant. Apart from a daily report on the status of the plant’s two reactors, the agreement requires that any INES-1 classified event at Temelín be notified to the Austrian authorities. INES-1 signifies an “anomaly” in the operation of the power plant with no implications for the safety of people and the environment. See IAEA 2008, 3.

  203. 203.

    The Temelín-specific arrangement may well be atypical for transboundary nuclear relations among neighboring States in general given that at that time Austria as a Member State of the European Community may have enjoyed special leverage vis-à-vis the Czech Republic as a then EC candidate country. See also Hummer 2008.

  204. 204.

    Protokoll mellom Statens strålevern (Konigriket Norge) og Det russiske atomenergibyrået Rosatom (Den Russiske Føderasjon) om gjennomføring av praktiske tiltak i forbindelse med deres forpliktelser som følger av Avtalen av 10. January 1993 mellom regjeringen i Kongeriket Norge og regjeringen i Den Russiske Føderasjon om tidlig varsling ved atomulykker og um utveksling av in formasjon om atomanlegg, September 9, 2015. Text on file with the author.

  205. 205.

    The new instrument now covers nuclear power plants, nuclear reactors aboard ships, nuclear fuel storage, as well as research and other reactors located in Norway and within the 300 km border with Russia. See Article III of the Protocol.

  206. 206.

    Thus pursuant to Article II, para 2 of the Protocol the parties agree to alert each other immediately about a nuclear accident and provide each other with accessible information about the nuclear accident. While the notification is to be accompanied, if possible, by a categorization of the accident according to the INES scale, the Protocol expressly stipulates that the absence of such classification must not delay the notification.

  207. 207.

    See Article 1 of Council Decision 87/8600/Euratom; and Article 2 of the Agreement between the European Atomic Energy Community (Euratom) and non-member States of the European Union on the participation of the latter in the Community arrangements for the early exchange of information in the event of radiological emergency (Ecurie), Official Journal C 102, 29/04/2003.

  208. 208.

    ENCO Report 2013b, 106.

  209. 209.

    See Vereinbarung zwischen dem Schweizerischen Bundesrat und der Regierung der Bundesrepublik Deutschland über den radiologischen Notfallschutz, May 31, 1978, AS 1979 312; and Notenaustausch vom 25. Juli 1986 zwischen der Schweiz und der Bundesrepublik Deutschland betreffend die Durchführung der Vereinbarung vom 31. Mai 1978/15. February 1980/25. Juli 1986 über den radiologischen Notfallschutz, AS 1988 781.

  210. 210.

    See id. at 197.

  211. 211.

    As regards, for example, Germany’s cooperation with neighboring States, see, e.g., Bundesministerium für Umwelt, Naturschutz, Bau und Reaktorsicherheit, Bilaterale Zusammenarbeit auf dem Gebiet der kerntechnischen Sicherheit, at

  212. 212.

    EURDEP is currently used by 38 European countries—including all 28 EU Member States as well as Norway, Switzerland, Belarus, Russia, Azerbaijan, Turkey, etc.—for the continuous exchange of data from their national radiological monitoring networks. During radiological emergencies the rate of data delivery will be hourly. EUropean Radiological Data Exchange Platform, at Its main aim, as the EURDEP website explains, “is to notify and inform competent authorities and the general public during the early phase of a large-scale accident with release of radioactivity to the atmosphere as early and extensively as possible.”.

  213. 213.

    See id.

  214. 214.

    See also ENCO Report 2013b, 197.

  215. 215.


  216. 216.

    See IAEA, International Radiological Information Exchange (IRIX) standard, at

  217. 217.

    IAEA 2012b, at 10.

  218. 218.

    Id. at 10–11.

  219. 219.

    See IAEA 2015f, 20.

  220. 220.

    Apart from the difficulty of acquiring real-time accurate data, Japanese authorities also experienced major problems in assessing the information that was available and in offering a global view of the accident, its off-site impact and likely future course of development. For a discussion of these communication failures see, e.g., National Research Council 2014, at 221-22; and IAEA 2015b, Technical Volume 3/5, at 85-9.3.

  221. 221.

    In other words, to be effective, emergency communications require authoritative interpretation of data, and the presentation of the informational output in a contextually ‘proper perspective’. See IAEA 2015f, 13.

  222. 222.

    Actually, at the time of the accident, the Agency’s functions did not include ‘providing a prognosis of the potential evolution of an accident or an assessment of the possible consequences’. See IAEA 2015b, Technical Volume 3/5, at 158.

  223. 223.

    IAEA 2015c, 6.

  224. 224.

    See IAEA 2015f, 3.

  225. 225.

    IAEA 2015f, 22.

  226. 226.

    Id. at 16.

  227. 227.

    This is clearly one of the many important lessons of the Fukushima accident. For further details see, e.g., Institute of Nuclear Power Operations 2012, 30, 35.

  228. 228.

    International Conference, supra note 124, at 14; and IAEA 2006, 1: ‘Emergency response exercises are a key component of a good emergency preparedness program. They can provide unique insight into the state of preparedness of emergency response organizations.’

  229. 229.

    IAEA 2011, 3.

  230. 230.

    CNS, Article 16, para 1.

  231. 231.

    Joint Convention, Article 25, para 1.

  232. 232.

    IAEA 2015d, Requirement 25, 56–57.

  233. 233.

    Id. at 58.

  234. 234.

    Note in this respect the critical findings by Nuclear Transparency Watch 2015, 54–55.

  235. 235.

    Note in this context the EU Council’s call for neighboring Member States to undertake ‘joint training sessions and nuclear emergency exercises representative of real emergency situations…’ See supra note 97, at 8.

  236. 236.

    As a case in point is the three-nation exercise simulating an accident at the Cattenom nuclear power plant, involving Luxemburg, France and Germany during 2011–2013. For details, see France, CNS, 6th National Report for the 2014 Review Meeting (June 2013), 132.

  237. 237.

    For example, the October 2015 Ecurie exercise tested the European-wide emergency information system.

  238. 238.

    See supra text at notes 91–95; and NEA 2014.

  239. 239.

    The Inter-Agency Committee on Radiological and Nuclear Emergencies (IACRNE), for which the IAEA provides the secretariat functions, coordinates large-scale international emergency exercises with the participation of a host State, of other States and various international governmental organizations concerned with nuclear EPR. For details on ConvEx-1 through 3exercises, see supra text at notes 75–78; For details on the latest Convex-3 exercise postulating a hypothetical major accident with transnational implications at the Laguna Verde nuclear power plant, see IAEA-Incident and Emergency Centre, Report of IAEA Participation: ConvEx-3(2008) International Emergency Response Exercise, Laguna Verde, Mexico, 9 to 11 July 2008 (2009).

  240. 240.

    In 2013 WANO organized a Scandinavian-Baltic region exercise. See WANO Moscow Centre Regional Crisis Centre in Action,

  241. 241.

    See Handl 2014, 203–09.

  242. 242.

    On a global level, two types of international peer reviews are of special relevance in the present context, namely IAEA’s dedicated emergency preparedness review (EPREV) and, at least to some extent, its Integrated Regulatory Review Service (IRRS). The latter provides reviews of the effectiveness of national regulatory infrastructure, including EPR organizations, against applicable international guidelines and best practices.

  243. 243.

    Note also the statement of the US delegate at the IAEA Board of Governors Meeting, March 7–11, 2016, at “In order to continue to enhance our nuclear and radiation safety programs, as well as emergency preparedness and response readiness, we urge all Member States to request and participate in not only peer review missions, but also in the related follow-up missions, and to publish the results of those missions to promote transparency and openness.”.

  244. 244.

    IAEA 2011, 3.

  245. 245.


  246. 246.

    Article 8(e), para 4: ‘In case of an accident leading to situations that would require off-site emergency measures or protective measures for the general public, the Member State concerned shall ensure that an international peer review is invited without undue delay.’

  247. 247.

    IAEA 2015d, 57.

  248. 248.

    Statement by France, Report of the Seventh Meeting of Representatives, supra note 72, at 10, para 53.

  249. 249.

    See Article 8(e) of the Safety Directive, supra note 97. It also requires that the results of the PR be reported to MS and the Commission.

  250. 250.

    ENCO 2015a, xii.

  251. 251.

    International Conference, supra note 124, at 44.

  252. 252.

    RANET has been defined as ‘a network of States Parties to the Assistance Convention that are capable and willing to provide, upon request, specialized assistance by appropriately trained, equipped and qualified personnel with the ability to respond in a timely and effective manner to nuclear or radiological incidents and emergencies.’ See IAEA 2013b, 13.

  253. 253.

    See IAEA 2015b, 96.

  254. 254.

    For details see 2015b, Technical Volume 3/5, at 157–58.

  255. 255.

    See IAEA 2015b, 96.

  256. 256.

    See IAEA 2015b, Technical Volume 3/5, at 157; and infra text at note 266.

  257. 257.

    See supra text at notes 219–226.

  258. 258.

    A relatively rare example of a multilateral agreement is the Nordic Mutual Emergency Agreement on Connection with Radiation Accident, IAEA Doc. INFCIRC/49, 8 November 1963. Mention must be made here also, of course, of the all-purpose EU Civil Protection Mechanism, first established in 2001, which covers also nuclear EPR actions. It is available for response assistance intervention throughout the EU as well as outside. See Decision No 1313/2013/EU of the European Parliament and the Council of 17 December 2013 on a Union Civil Protection Mechanism, OJ L 347/924, December 20, 2013.

  259. 259.

    See text at notes 41–47 and 68–74.

  260. 260.

    Article 2, para 4 of the Convention.

  261. 261.

    The European Emergency Response Centre which plays a similar role within the framework of the EU Civil Protection Mechanism could act as the ‘single registration point’ in Europe for IAEA’s RANET system. See ENCO Report 2013b, 192.

  262. 262.

    For details, see IAEA 2013b, at 36–67.

  263. 263.

    As of February 29, 2016.

  264. 264.

    See Russian Proposal for Strengthening and Implementation of the Convention on Early Notification of a Nuclear Accident and the Convention on Assistance with the [sic] Case of Nuclear Accident or Radiological Emergency, Non-Paper, 20 April, 2012, Sixth Meeting of the Representatives of Competent Authorities, supra note 185, at 49.

  265. 265.

    IAEA 2011, at 3.

  266. 266.

    IAEA 2015b, at 96.

  267. 267.

    IAEA 2015d, 45.

  268. 268.

    This argument could be made in addition to or separate from a claim that such assistance could be imposed on the accident State as a matter of self-defense/self-help on the part of potentially threatened third States.

  269. 269.

    Kuş 2011, 13.

  270. 270.

    Corfu Channel case, (U.K. v. Albania), Judgment, Merits, [1949] ICJ Rep. 4, at 22.

  271. 271.

    See Report of the International Law Commission on its Sixty-Sixth Session (5 May–June 6 and July 7–August 8 2014) 84, at 86–89 UN GAOR 99th Session, Supplement No. 10 (A/69/10). In 2014, at its sixty-sixth session, the Commission adopted the draft Articles on first reading and transmitted them to the UN Secretary-General, governments, etc. for comments and observations by January 1, 2016.

  272. 272.

    The complete definition of ‘disaster’ in draft Article 3 reads: ‘Disaster means a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, or large-scale material or environmental damage, thereby seriously disrupting the functioning of society.’

  273. 273.

    See draft Articles 9-11.

  274. 274.

    Draft Article 12.

  275. 275.

    See draft Article 14, para 1.

  276. 276.

    Draft Article 13.

  277. 277.

    Commentary to draft Article 13, at 120–122.

  278. 278.

    Id. at 122. By contrast, a duty to ‘request’ assistance, so the commentary maintains, ‘carries an implication that an affected State’s consent is granted upon acceptance of that request by a third State.’

  279. 279.

    Draft Article 14, para 2. Some the members of the Commission, however, denied that there was a customary international legal basis for the affected State’s duty not to arbitrarily withhold consent. See Commentary to draft Article 14, at 124.

  280. 280.

    Draft Article 20: ‘The present draft articles apply without prejudice to special or other rules of international law applicable in the event of disasters.’

  281. 281.

    See Commentary, at 136.

  282. 282.

    One cause for such doubts would be the unequal legal standing of the two texts: one a treaty, the other a formally non-binding document or set of normative provisions that represents a mixture of codification of custom and progressive development of international law.

  283. 283.

    Id. at.

  284. 284.

    This is precisely one of the functions that, as the ILC acknowledges, the draft Articles could play, notwithstanding the application of draft Article 20.

  285. 285.

    For one perspective rejecting outright the idea of a lex specialis displacement of human rights, especially when the latter have jus cogens status or are non-derogable, see Paust 2016, 13.

  286. 286.

    See supra note 204.


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Handl, G. (2016). Nuclear Off-site Emergency Preparedness and Response: Some International Legal Aspects. In: Black-Branch, J., Fleck, D. (eds) Nuclear Non-Proliferation in International Law - Volume III. T.M.C. Asser Press, The Hague.

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