2016 IPSA Yea-jen TSENG. Draft paper, please do not quote

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1 Norms-Making for an International Nuclear Safety Institution: The Framing, Shaping, and the Institutional Construction of the European 2011/70/EURATOM Directive on the Management of Spent Fuel and Radioactive Waste Abstract Nuclear safety is vital to world peace. The European Atomic Energy Community s (EURATOM) law-making achievement, the 2011/70/EURATOM directive, has constructed a new model for international nucelar insitution on the management of spent fuel and radioactive waste. Arguing that EURATOM is the agenda framer, institution shaper, and the constructor of the international nuclear safety institution, this article first summaries how the European states set principles for the nuclear spent fuel and radioactive waste safety management. Then, the law-making process with which EURATOM has built a set of new norms for the international nuclear safety is explored in the second part. The third part presents the institutional implications that the 2011/70/EURATOM directive has generated. It concludes that the 2011/70/EURATOM directive has framed, shaped, and constructed a new set of global rules for the international nuclear safety on the management of spent fuel and radioactive waste. Keywords: Spent Fuel, International Nuclear Safety, EURATOM 1

2 After the 2011 Fukushima nuclear disaster in Japan, the Fukushima nuclear power plant became a huge radioactive wasteland. 1 However, it did reveal the negligence of management and the lack of safety regimes for international spent nuclear fuel and radioactive waste. 2 International nuclear safety specifying a spent nuclear fuel and radioactive waste management regime is an important and emerging international regime for the international community. Its creation was closely related to the Cold War, and thus, witnessed the important period of expanded European integration, as well as the deepening challenges faced by organizational entities. Although the international community ushered in the atomic age in 1945, neither the International Atomic Energy Agency (IAEA), as established in 1957, nor the United States, Russia, and European countries dominating nuclear technology had established a relevant nuclear safety regime or a radioactive waste management safety regime. It was not until the 1986 Chernobyl nuclear disaster, which occurred in the former Soviet Union and shocked the 3 international community, that an international nuclear safety regime was established, according to a proposal by the European Atomic Energy Community (EURATOM), and the IAEA Convention on Nuclear Safety was signed in However, regarding the nuclear safety region of the nuclear fuel back-end cycle, it was not until the effectiveness of the Joint Convention on the Safety of Spent Fuel Management and Safety of Radioactive Waste Management (hereinafter referred as Joint Convention) in 2001, did the international community outline the basic nuclear principles for nuclear installation safety, spent fuel management, and radioactive waste management. This paper is part of the research results of the program of the National Science Council (NSC H MY2). 1 Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management defines that radioactive waste refers to the gaseous, liquid, or solid radioactive materials, which the parties of the Joint Convention or other natural or legal persons who decide to gain the recognition of the parties are not expected to make any further use, is regarded as radioactive materials by the regulatory body based on the legislative and regulatory framework of the parties, and is controlled (IAEA, 1997a: article 2.h). Radioactive waste management refers to all the activities related to the handling, pretreatment, treatment, conditioning, interim storage, or final disposal of radioactive waste, including decommissioned activities, but excluding off-site transportation; it may also involve emissions (IAEA, 1997a: article 2.i). 2 According to the definition of IAEA Joint Convention, spent nuclear fuel refers to the nuclear fuel previously in the core of a nuclear reactor receiving radiation, and later permanently discharged from the core (IAEA, 1997a: article 2.m). Spent nuclear fuel management refers to all the activities related to the handling or storage of spent nuclear fuel, but excludes off-site transportation; it may also involve emissions (IAEA, 1997a: article 2.o). It is worth noting that, Taiwan and mainland China have different Chinese translations of the specific terms of IAEA. 3 Chernobyl is in the Ukraine. After the disintegration of the Soviet Union in 1991, Chernobyl is now within the jurisdiction of the Ukraine. 2

3 This paper reviewed the efforts of EURATOM to integrate relevant regimes and regulations into the European integration legal system, as well as the resistance and compromises of member states. I. Limitations of the Past Studies on EURATOM EURATOM, founded in 1958, 3 is a regional organization dedicated to nuclear affairs in Europe with independent international legal personality (Parsons, 2002; European Union, 2012c: article 184; EURATOM, 2012: 2; European Commission, 2014: 21). The EURATOM Treaty reveals that, EURATOM aims to promote the integration of the field of atomic energy in Europe, develop management practices for member states related to the nuclear field, and facilitate member states to carry out nuclear development activities. It works closely with IAEA, reached international nuclear cooperation agreements with the third-world countries, and joined IAEA Convention on Nuclear Safety and the Joint Convention in the name of EURATOM to become a party of international conventions. Overall speaking, most previous studies of European integration and relationships among member states focused on the integration system and multilevel governance characteristics, analyzed the role of the EU in the national community, explored the socialization of the EU and achievements of member states (Checkel, 2005; Lewis, 2005), and how the EU strengthened compliance to EU laws by member states (Haas, 1998; Tallberg, 2002), and highlighted the authority gaming between the EU and its member states during integration (Moravcsik, 1997). When an EU representative was authorized to negotiate or sign international agreements with a third country or international organization, the EU member states were required to hold a single voice to action externally (Meunier, 2005: 2). Studies on European integration unconcerned about the cooperation and competition between European integration authorities and member states. Especially in the discussion where the EU was regarded as a normative power of the international community; the EU was considered as a whole and it was believed that the EU and its member states enjoyed consistent interests and behaviors, and promoted specific values, such as human rights, democracy, and legal governance (Manners, 2002; Manners: 2006). Most studies on European integration paid attention to the institutional change from EURATOM to the EU, the integration process, and the internal operational characteristics, while simply ignoring the 3 On March 25, 1957, France, Germany, Italy, Belgium, Netherlands, and Luxembourg signed Treaty establishing the European Economic Community (EEC Treaty) in Rome and Treaty establishing the European Atomic Energy Community (EURATOM Treaty). The two treaties entered into force on January 1, 1958 and created "European Economic Community" (EEC) and EURATOM. 3

4 existence of EURATOM. Thus, it has added value to observe the interaction between EURATOM and its member states in order to see the whole picture of European integration. The unique position of EURATOM in European integration First, in terms of organizational structure, EURATOM, in the European integration, continues to maintain the status of legal entity in parallel with that of the EU, highlighting the independence and uniqueness maintained by European countries in the field of atomic energy. At the beginning of its establishment in 1958, EURATOM and "European Economic Community" (EEC) had their respective councils and commissions. Later on, after the Merger Treaty became effective in 1967, and while the European Coal and Steel Community (ECSC) was established in 1951, EEC and EURATOM were operated jointly, and named as "European Communities (European communities, 1967), 4 the legal personalities of the three communities were not affected (Hahn, 1958; Willis, 1978). The Maastricht Treaty entered into force in 1993, and changed the name EEC into the European Community (EC), and combined 5 EURATOM, ECSC, and EC as the first pillar of the EU. 6 However, after the Lisbon Treaty effect in 2009, 7 among the three legal entities in the 50s, only EURATOM retained legal entity status (EURATOM 2012: 15; European Union, 2012c: article 184) 8 and became an organization parallel with the EU to have legal personality, and through financial and administrative integration, they maintain close cooperation (EURATOM, 2012: 2; European Commission, 2014: 5) (see Figures 1 and 2). The EU Commission was the external representation of EURATOM (European Union, 2012c: article 185), and they have the same members. As of 2014, EURATOM had 28 member states. The latest member was Croatia, which entered the EU and 4 ECSC), EEC, and EURATOM form European Communities (in plural form rather than singular form). The point is easily expressed in English, but difficult in Chinese (Willis, 1978). 5 Maastricht Treaty also known as TEU, and renamed "EEC" as "European Community (EC)". In order to distinguish the changes of the names of communities, the co-existence of the three major communities before 1993 were referred to together as "European Communities". 6 The other two pillars are the second pillar, Common Foreign and Security Policy and the third pillar, Judicial Co-operation in Criminal Matters. However, in 2009, the Lisbon Treaty readjusted the structures of the three pillars and integrated them into TEU and TFEU. After the effect of the Lisbon Treaty, the concept "three pillars" is no longer used to describe the nature of the tasks of the EU. 7 Lisbon Treaty was signed on December 31, 2007 to (1) modify the Treaty on the European Union (TEU) (European Union, 2007a); (2) modify the treaty establishing the European Community, and renamed it as the Treaty on the Functioning of the European Union (TFEU) (European Union, 2007a); and (3) modified the treaty establishing EURATOM (European Union, 2007b). The three treaties constitute the basis of operation of the European integration legal system (Ptasekaite, 2011: 2). 8 Lisbon Treaty gave legal personality to the EU (European Union, 2012a: article47). The "European Community" (EC), a legal entity, was replaced and succeeded by the EU (European Union, 2012a: article 1). The ECSC, which took effect in 1952, stopped operations due to the expiry of its established treaty in 2002 for a term of 50 years. 4

5 EURATOM on July 1, 2013 (European Union, 2011a: article 1). Moreover, some international treaties allow regional entities with legal personality to become parties, thus, EURATOM can sign international treaties and participate in the activities of international organizations as a regional organization, which creates the role of EURATOM as an agenda-setter or entrepreneur of international regimes. On the basis of shared institutions, the commission had the dual identities of the external representation of EURATOM and the EU. In the field of atomic energy, it expressed ideas on behalf of EURATOM, exercised powers, negotiated with third countries, and signed international agreements on behalf of EURATOM (European Commission, 2014: 57). In other words, under the particular framework of administration and finance of the EU, EURATOM, with the identity of a regional organization, joined the IAEA Nuclear Safety Convention and the Joint Convention, attended the review conferences of the parties of the two conventions, submitted reports, responded to inquiries, and participated in discussions (EURATOM, 2012: 2; European Commission, 2014). In particular, some of the members of EURATOM, as state parties, joined the two conventions and became the parties of the two conventions, such as EURATOM (European Union, 2004; European Union, 2005a; European Union, 2005b). Finally, while EURATOM and the EU are the rule-making authorities of the European integration legal system, the rule-making and decision-making processes of EURATOM in the field of atomic energy are quite different from those of the EU. Since EURATOM has independent legal personality, the EURATOM Treaty under the European integration legal system is a constitutional treaty, or the primary law of EURATOM. Such law rank authorizes EURATOM to develop secondary laws in the field of atomic energy, including law-binding regulations, directives, and decisions, and proposes recommendations without legal binding force. However, the decision-making status under legislative procedures of European Parliament is greatly different from those of the EU and EURATOM. In ordinary legislative procedures, or even special legislative procedures, the European Parliament is always a co-decision-maker of the council (European Union, 2012b: articles 294, 289.1, 289.2). Under the rule-making procedures of EURATOM, the European Parliament only played an advisory role, but without legislative power equivalent to that under the EU legislative procedures (Ptasekaite, 2011: 31). According to Article 31 of the treaty set up by EURATOM, after it listened to the opinions of the experts appointed by the Scientific and Technical Committee, as well as the opinions of the Economic and Social Committee, the commission shall submit law proposals to the council, consult the opinion of the European Parliament, and finally, adopt law drafts through 5

6 qualified majority. Even though the European Parliament had proposals for amendments, and they were compulsory, the council still passed the drafts through qualified majority, and completed the legislation of secondary laws (European Union, 2012a: article 31; European Commission, 2014: 57). The treaties and secondary laws set up by EURATOM have binding force to the members of EURATOM (Efron and Nanes, 1957: 677; European Union, 2012c: article 185). Compared with the EU legislative procedures after the effect of the Lisbon Treaty, EURATOM still maintains the legislative procedures of proposals only by the commission (representing the interest of EURATOM) and the sole decision by the council (representing the interest of member states). In other words, since the 1960s, the decision reform program of the EU has not spilled over to EURATOM, reflecting that EURATOM members still insist upon their special intention to control the field of atomic energy through the council representing the interests of member states. EURATOM decision-making and rule-making procedures have not changed since 1958, which is strong evidence supporting the interpretation of the integration pattern of the field of atomic energy in Europe by intergovernmentalism. 6

7 II. Wrestling between EURATOM and its Member States in the Negotiation of Regime 1. Cooperation on the setup of the agenda to comprehensively promote international nuclear safety regime The Chernobyl nuclear disaster led EURATOM to consider the necessity of the management of nuclear safety and radioactive waste from their roots. The Chernobyl nuclear disaster in 1986 seriously affected the health and safety of citizens of EURATOM member states. However, at the peak of the Cold War, it was only through diplomatic means (Woodliffe, 1990) that EURATOM could sign bilateral agreements regarding nuclear disaster notification procedures with the former Soviet Union, as well as the Central and Eastern Europe Countries of the former Soviet Bloc. 9 The Soviet Union suddenly disintegrated between 1989 and Under the context, EURATOM began to advocate the setup of comprehensive and international nuclear security regime, including the management and safety of radioactive waste, and gained the support of its member states. In February 1990, the Netherlands proposed holding an international conference in its proposal to the IAEA Board of Governors in order to review the issues of nuclear security (Commission of the European Communities, 1993: 27; IAEA, 1991a: 1). After the completion of the decision-making procedures of the IAEA Conference, the IAEA Conference decided to hold The International Conference on the Safety of Nuclear Power in The conclusion of the conference represented IAEA's position in 1992 EU Conference on the Environment and Development (IAEA, 1991a: 1). Although it was nominally convened by the IAEA, the International Conference convened in September 1991 on the Safety of Nuclear Power: Strategy for the Future (hereinafter referred as the Conference), was actually led by the member states of EURATOM. The President of the Conference was a German expert. The Conference Steering Committee was composed of 17 people, wherein, 8 were of EURATOM member state nationals. Even the CEC was a member of the Conference Steering Committee. The Conference included five topics, namely, basic safety principles of the use of nuclear power, ensuring the enhancement of the safety of nuclear power 9 Convention on Early Notification of a Nuclear Accident or Radiological Emergency, Convention on Early Notification taking effect in

8 operation, safety of construction of nuclear power plants, next-generation nuclear power plants, and disposal of nuclear waste. Each topic had two hosts, wherein, one must have a nationality of the EURATOM member states. In addition, the above-mentioned five topics had respective Expert Working Groups. The hosts of three of the five groups were people with a nationality of EURATOM member states. The CEC served as the host of the Expert Working Group of the disposal of nuclear waste (IAEA, 1991b: 1). There were a total of 36 experts composing the Exert Working Groups, wherein, 23 had a nationality of EURATOM member states. Seven of the ten experts involved in the basic principle of nuclear safety had a nationality of EURATOM member states. Among the eight experts composing the Exert Working Group of nuclear waste disposal, only one did not have a nationality of EURATOM member states (IAEA, 1991b: 5-7). The representatives of the CEC elaborated upon the ambitious expansion of EURATOM, reviewed the cooperation between EURATOM and Eastern European countries, such as the former Soviet Union, Bulgaria, and the Czech Republic after Chernobyl nuclear disaster, and actively advocated to establish an international nuclear safety regime with a legal and technical basis (IAEA, 1991b: 31-32). The CEC representing EURATOM proposed the following three recommendations. First, the international community should consider establishing an international legal mechanism for nuclear safety. Second, international conventions on radiation protection and safety oversight should be signed. Third, based on the role of a supervisor played by IAEA in nuclear non-proliferation, 10 IAEA should be authorized to review international nuclear safety and include all the countries of the international community in the comprehensive management and control of nuclear safety by IAEA (IAEA, 1991b: 37). The management and control of radioactive waste has become an international topic, and the focus of the international community. The International Conference on the Safety of Nuclear Power in 1991 emphasized that nuclear power safety was the responsibility of countries with nuclear power, and suggested that, in terms of the integrative nuclear safety affairs of radioactive waste, IAEA should consider promoting an international convention framework (IAEA, 1991a: 2-4). The 1992 United Nations Conference on Environment and Development, held in Rio de Janerio, Brazil, specially appealed the importance of safely management of radioactive waste and the feasibility of concluding a legally binding instrument (United Nations 10 See Review on Treaty on the Non-Proliferation of Nuclear Weapons: From the Perspectives of Realpolitik and Identity Politics for nuclear non-proliferation (Yuan, 2005) 8

9 Substantial Development, 1992: para ). The regime of nuclear safety, as proposed by EURATOM, especially suggestions regarding the management and safety of radioactive waste, has become a topic of the international community. 2. Disagreement between EURATOM and its member states in the negotiations of the Convention on Nuclear Safety Based on the suggestions of the 1991 International Conference on the Safety of Nuclear Power, the 35th IAEA Conference passed resolution No. 553, which requires the Director General of the IAEA to consider the activities and roles of international and governmental organizations, refer to the opinions of the International Nuclear Safety Group (INSAG), Nuclear Safety Standards Advisory Group (NUSSAG), Waste Management Advisory Committee (INWAC), and the profession of qualified international organizations of member states, and submitted the outline draft of the Convention on Nuclear Safety (IAEA, 1991c). The CEC, representing EURATOM, in the name of a regional organization, became a member of the Expert Working Group of the Convention on Nuclear Safety. In accordance with the authorization of resolution No. 553 of the IAEA Conference, the Director General of the IAEA invited 36 experts from IAEA member states in December 1991, representing the Commission of European Communities (CEC) and in the name of observers, to attend the conference of Expert Working Group on the Convention on Nuclear Safety held by Organization for Economic Co-operation and Development Nuclear Energy Agency (OECD/NEA), International Labor Organization (ILO), INSAG, NUSSAG, and INWAC President, proposed and submitted a working paper on the Convention on Nuclear Safety to the IAEA Secretariat, make a plan for the Radioactive Waste Safety Standards (RADWASS) under discussion, discussed The Safety of Nuclear Installations without legal binding force, and drafted The Principles of Radioactive Waste Management, in order to establish global nuclear safety and radioactive waste management regulations. The Group of Experts formally authorized to draft the Convention on Nuclear Safety was formally established in 1992, when 90 experts from 45 countries, OECD/NEA, ILO, and CEC held the first conference of the Group of Experts on the Convention on Nuclear Safety in May 1992 (IAEA, 1993: 1). CEC, representing EURATOM, fully participated in the conference (Jankowitsch and Flakus, 1994: 37-39). While EURATOM was present during the draft stage of the Convention on Nuclear 9

10 Safety, during the formal negotiation stage, it was restricted by the Council, and EURATOM lost its negotiation qualification. Article 101 of the treaty establishing EURATOM stipulated that, in the event of negotiation and conclusion of international agreements, EURATOM must obtain the negotiation directives authorization of the Council; while the Council, representing EURATOM, should negotiate with third countries, international organizations, or persons authorized by third countries. The conclusion of international agreements should not surpass the powers and jurisdiction of EURATOM, and be accepted by the majority of the Council (European Union, 2012c: article 101). In other words, in the absence of the directives authorization by the Council, CEC could not represent EURATOM to attend international agreement negotiations. In September 1993, CEC submitted the directives draft to participate in the negotiation of the Convention on Nuclear Safety to the Council (Commission of the European Communities, 1994: 3), which was laid aside by the Council (European Commission, 2010a: 39), indicating that the Council, representing the member states, deliberately obstructed CEC, the external representation of EURATOM, from participating in the negotiations of the Convention on Nuclear Safety. After EURATOM was disqualified from negotiations, for the purpose of their interests, member states led the negotiations on the Convention on Nuclear Safety. First, under the influence of France, the IAEA Conference confirmed that the Convention on Nuclear Safety should focus on "encourage", in order to reduce legal compliance to the Convention on Nuclear Safety. The French representatives attending the 1992 IAEA Conference claimed that if the Convention on Nuclear Safety had contained all the terms expected, it would have scared away the countries that believed that they would never achieve specific nuclear safety standards. Hence, the Convention on Nuclear Safety should encourage, rather than force, countries to improve nuclear safety (IAEA, 1992: 10). In addition, EURATOM member states held different opinions, forcing the drafts proposed in the Group of Experts conference to be amended again and again, or not determined. The states held different positions in terms of the scope of the Convention on Nuclear Safety, whether it should contain all the stages of the nuclear fuel cycle, and 11 in particular, the management of radioactive waste. Britain and France strongly opposed the expansion 11 Nuclear fuel cycle refers to the steps supplying nuclear fuel to nuclear reactors. Based on a nuclear reactor, nuclear fuel cycle can be classified into front end and back end. Front end nuclear fuel cycle refers to the production of nuclear fuel applicable for power plants, including uranium exploration, mining, processing, and refinement of uranium ore, uranium conversion, enrichment, fuel fabrication, etc. Back end nuclear fuel cycle refers to the transport, storage, and reprocessing of spent nuclear fuel discharged from a nuclear reactor and the final disposal of radioactive waste (Ku, 2009: 2-11). 4 Such as Finland, Sweden, and other countries (IAEA, 1993: 5-6). 10

11 of the scope of the Convention on Nuclear Safety (IAEA, 1993: 8-10). 12 Such a situation was equal to abandoning the original plan of a comprehensive Convention on Nuclear Safety. Although the text of the Convention on Nuclear Safety contained the terms for open participation allowing regional organizations of integration or other natures to join (IAEA, 1994a: article 30.4; Commission of the European Communities, 1994: 3), and the interests of EURATOM under the Convention were weakened due to the restrictions on voting rights. Article 30.4 of the Convention on Nuclear Safety stipulated that regional organizations were composed of sovereign states, and had competence regarding the matters and negotiations related to the Convention on Nuclear Safety, as well as the conclusion of and participation in international agreements. In addition, in terms of the scope of limits of authority, such organizations could exercise and fulfill the rights and obligations given to parties by the Convention on Nuclear Safety. However, only the member states of such organizations enjoyed the right to vote, while other organizations had no right to vote (IAEA, 1994a: article 39.4; Commission of the European Communities, 1994: 3). It can be seen that, though EURATOM participated in the international Convention on Nuclear Safety, it did not have the right to vote, meaning its status was no different than that of an observer. After a two-year dispute regarding the draft, IAEA convened the Diplomatic Conference of Convention on Nuclear Safety (draft) in June The draft was passed in the absence of voting and available for signing by September As of January 2014, 77 countries had become parties to the executed Convention on Nuclear Safety (IAEA, 2014). The Convention on Nuclear Safety contained 4 chapters and 35 articles, including the radiation protection of nuclear facilities (IAEA, 1994a). Preamble IX in the Preface of Convention on Nuclear Safety made it clear that an additional international convention on the management of radioactive waste would be established (IAEA, 1994a: preamble ix), thus, foreshadowing the establishment of the international management regime of radioactive waste. However, EURATOM compromised its original plan of EURATOM to establish the comprehensive Convention on Nuclear Safety, including all the stages for the management of spent nuclear fuel and radioactive waste, under obstruction by EURATOM member states. 11

12 3. The inaction of EURATOM during the negotiations of the Joint Convention Since the drafting stage of the Joint Convention, EURATOM was marginalized by its member states and attended the negotiations as an observer. The 38th IAEA Conference, held in September 1994, passed the resolution that the Director General of IAEA was required to compile plan results referring to RADWASS, such as, the information related to the planned Principles of Radioactive Waste Management and preparation for the convention on the management of radioactive waste (IAEA, 1994b). With the consent of the IAEA Council, the first legal and technical expert group meeting was held in July 1995, and 128 experts from 53 countries attended the meeting. CED, NEA/OECD, and IMO attended as observers, which meant that EURATOM only had the right to participate, but not to vote or propose. In other words, the practice of CEC to represent EURATOM to participate in directives was forced to be canceled, and EURATOM members could advance the confrontation of ideas in the meeting to draft the Joint Convention. With Convention on Nuclear Safety as a precedent, the legal and technical expert group drafting the Joint Convention positioned the Convention on Radioactive Waste Management as a sister convention to the Convention on Nuclear Safety, with the nature of encouragement rather than a legally binding force in the first meeting (IAEA, 1995: 1-2), which reconfirmed the optional nature of the states to comply with the conventions. In the follow-up drafting negotiations, the states had great differences in terms of whether spent nuclear fuel should be included in the scope of the convention, the relationship between the Joint Convention and the Convention on Nuclear Safety, spent nuclear fuel and radioactive waste generated by military and defense plans, cross-border transportation, and disused sealed sources (Tonhauser & Jankowitsch-Prevor, 2006: ; de Kageneck & Pinel, 1998). EURATOM, attending the drafting meeting as an observer, could only witness the rivalry among its member states for their respective interests. First, the legal and technical expert group confused radioactive waste with spent nuclear fuel, and added both to the scope of the Convention in its draft, which triggered a strong reaction from France. Nordic countries, the United States, and Britain argued that spent nuclear fuel should be included in the scope of the Convention, but France, China, India, Pakistan, the Netherlands, and other countries, believed that spent nuclear fuel could be reprocessed and reused, and was therefore, a resource rather than a waste (de Kageneck & Pinel, 1998: 410). Moreover, they 12

13 doubted that the practice of confusion between the two concepts was authorized by the IAEA Board of Governors (Tonhauser & Jankowitsch-Prevor, 2006: ). There was no breakthrough regarding whether or not spent nuclear fuel could be included in the Joint Convention until the 5th legal and technical expert group meeting was held in South Africa in France proposed a solution in the 1996 meeting, and spent nuclear fuel and radioactive waste were identified as different categories under one framework of the Joint Convention (Tonhauser & Jankowitsch-Prevor, 2006: 207). In view of this, the original Convention on Radioactive Waste Management was renamed as the Joint Convention on the Safety of Spent Fuel Management and the Safety of Radioactive Waste Management. Furthermore, since the Convention on Nuclear Safety applied only to the nuclear facilities of civilian power plants, the two conventions had overlapped content in terms of the radioactive waste generated at nuclear power plants on site, while decommissioning the position of the noumenon of nuclear power plants might lead to areas ignored by both conventions. Finally, each party agreed to extend the definition of radioactive waste management, including decommissioning activities (Tonhauser & Jankowitsch-Prevor, 2006: 208). Second, regarding radioactive waste for the purposes of military and defense, the voluntary approach supported by France, China, and Russia conflicted with the mandatory approach supported by the United States and Britain after several discussions. A compromised plan was reflected in Article 3.3 of the Joint Convention, which adopted and presented both positions. The first half of Article 3.3 of the Joint Convention clearly excluded its application to the management of spent nuclear fuel or radioactive waste generated from military or defense plans unless the parties voluntarily deemed it applicable. However, the second half of Article 3.3 of the Joint Convention clearly stated that, if the spent nuclear fuel and radioactive waste generated from military or defense plans was transferred permanently to civilian programs, and included in the management scope of such programs, the Joint Convention was applicable to the management of such materials (IAEA, 1997a). Lastly, the issue of cross-border transportation was extremely complex. Many concepts could only be contained in the Preamble, thus, it was difficult for them to become specific country obligations. Article 1.3 of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, which took effect in 1992, had excluded the application to radioactive waste (United Nations, 1999: 129), thus, it was necessary for the Joint Convention to make detailed specifications regarding cross-border transportation (IAEA, 1997a: article 27.1). 13

14 However, the problem was that the legal and technical expert group found that some countries expressly prohibited the final disposal of radioactive waste produced in foreign countries within their territory; while other countries allowed the reprocessing of spent nuclear fuel from other countries, and the return of the reprocessed radioactive waste. It was a great problem to solve this discrepancy. Finally, the Joint Convention once again included the two different positions in its Preamble. Preamble XI revealed that, regarding the management of radioactive waste, such materials should be disposed in the countries where the materials were produced. However, in some cases, in consideration of the interests of each party, it expressed the adoption of relevant agreements regarding the use of the facilities of one party (IAEA, 1997a: preamble XI). However, Preamble XII expressed that, any country had the right to reject spent nuclear fuel generated by foreign countries into its territory. Regarding the disposal repositories of developing regions, an attitude neither encouraging nor prohibitive should be held, and fuzzy methods not constituting the obligations of the parties should be employed, indicating the possibility to construct regional shared final disposal repositories (Tonhauser & Jankowitsch-Prevor, 2006: 208). The process from the finalization of the Joint Convention to the last diplomatic negotiation conference was full of surging undercurrents. After the legal and technical expert group of the Joint Convention proposed a draft version of the Joint Convention in March 1997, the IAEA Board of Governors decided in June 1997 that the diplomatic conference was to be held in September 1997 to discuss the adoption of the Joint Convention. A total of 84 countries participated in the meeting. The UNEP/Secretariat of the Basel Convention, the World Health Organization, and OECD/NE attended the meeting as observers (IAEA, 1997b). At the diplomatic conference, Luxembourg, on behalf of EURATOM, only extended thanks without any specific position on the content of the Joint Convention (IAEA, 1997c: 26). On the contrary, Britain attempted to include reprocessing activities in the scope of the Joint Convention. New Zealand required prior notice and the consent of the middle countries regarding cross-border transportation. However, the two proposals failed to gain majority support, and New Zealand decided to refuse to sign the Joint Convention (Tonhauser & Jankowitsch-Prevor, 2006: 213). The Joint Convention was passed at a diplomatic conference in 1997, and was available for signing after the resolution of the 41th IAEA Conference held in September However, the Joint Convention failed to reach the requirement of effectiveness, and thus, failed to become the norm for international management of spent nuclear fuel and radioactive 14

15 waste until June 18, The joint Convention contained 69 parties besides EURATOM (IAEA, 2013). 4. Main content of the Joint Convention The Joint Convention contains 7 chapters, 44 articles, and three objectives (IAEA, 1997a: article 1). Objective I: To maintain high-level management of spent nuclear fuel and radioactive waste. Objective II: Under the premise to meet the needs of the present generation without compromising those of future generations, to ensure that all the stages of the management of spent nuclear fuel and radioactive waste have effective protective measures to prevent the potential damage of ionizing radiation, in order to protect humans, society, and the environment from the harm of ionizing radiation. Objective III: To prevent the occurrence of accidents at any stage of spent nuclear fuel or radioactive waste, and in the event of an accident, mitigate the consequences of the accident. In addition to the codification of the basic principles of IAEA nuclear safety, the Joint Convention includes the following several points. First, management systems shall be established in terms of the selection of location, design, construction, safety assessment, operation, decommissioning, and other aspects (IAEA, 1997a: article 4-17). Second, parties, within their domestic legal frameworks, shall adopt legislative, supervisory, and regulatory measures required to fulfill the obligations of the Joint Convention (IAEA, 1997a: article 18-20). Third, the responsibilities of the operating parties shall be clearly identified (IAEA, 1997a: article 21). Fourth, protection, emergency, and decommission measures shall be set for transportation (IAEA, 1997a: article 24-26). Fifth, cross-border transportation shall comply with the Joint Convention and international laws and regulations with binding force (IAEA, 1997a: article 25). Sixth, according to the review meeting and national report requirements of the Joint Convention, each party shall hold a review meeting every three years, during which each party shall submit a national report (IAEA, 1997a: article 30 and 32). Up to the present, the Joint Convention has held 4 sessions of review meetings, with the last one held in Vienna in May Overall speaking, the Joint Convention has almost codified the basic principles and relevant regulations regarding the management of the radioactive waste of IAEA. However, the principles and regulations still need to be converted into the domestic laws of each party. 15

16 III. Disputes on the Conversion of International Conventions and Regulations to the Legal System of European Integration 1. Disputes on the competence of EURATOM to fulfill Convention on Nuclear Safety Based on the EURATOM Treaty, TEU, TFEU, and European integration clarified the goals of European integration, and defined the powers of each institution, their decision-making processes, and the relationships between member states and institutions. In particular, all the actions of EURATOM and the EU shall be authorized by basis treaties. Therefore, when CEC represents EURATOM, joins international conventions, and fulfills the obligations of the conventions, the CEC cannot surpass the scope of competence authorized by EURATOM Treaty. In view of this, the key to include the Convention on Nuclear Safety and the Joint Convention in the European legal system lies in whether the authorization by the EURATOM Treaty to the CEC allows the CEC to fulfill the obligations of EURATOM under international conventions. The Council representing the interests of member states is the key that determines whether the CEC can obtain adequate authorization to fulfill the international Convention on Nuclear Safety and the Joint Convention. First, after the Convention on Nuclear Safety entered into force in 1994, the CEC had proposed to the Council that, it intended to join the Convention on Nuclear Safety representing EURATOM, followed by immediate disputes over the power expansion by member states. In the joining draft submitted to the Council, and according to the obligations of the party under Chapter II of the Convention on Nuclear Safety, the CEC advocated that EURATOM should have considerable authority to establish a legislative and regulatory framework to govern the safety of nuclear installations. In addition, in order to protect the general public and laborers from the risk of ionizing radiation (Commission of the European Communities, 1994: 5), and based on Articles 30 to 32 of the EURATOM Treaty, the CEC advocated that EURATOM should have the necessary competence to establish safety regulations related to the nuclear safety assessment of the nuclear facilities of each member state, including radiation protection, emergency measures, selection of location, design, construction, and operation (Commission of the European Communities, 1994: 4). However, EURATOM member states did not agree with the views of the CEC, and deemed that EURATOM could, at most, authorize the CEC regarding the standards of exposure to 16

17 ionizing radiation of the general public and laborers, and finally, it fell to the authorities of each state (United Kingdom Parliament, 1998) regarding how the standards were domestically implemented by each member state. The disputes over the authority of EURATOM to join the Convention on Nuclear Safety lasted till 1998, when the viewpoint of the limited competence of member states prevailed. The Council determined that EURATOM should join the Convention on Nuclear Safety in 1998 (Commission of the European Communities, 1999: 30); however, it restricted the competence of EURATOM to act only in the aspects of protection dose standards regarding ionizing radiation related to the general public and laborers, and the safety and emergency plans of nuclear facilities. The resolution reflected the common sense of EURATOM member states to limit the authority of EURATOM in terms of nuclear safety and the dilemma of the CEC in the face of the authority requirements of its member states. Adhering to the Council's resolution, on behalf of EURATOM, pursuant to Article of the Convention on Nuclear Safety, and in the name of a regional organization, the CEC applied to join the Convention on Nuclear Safety in 1999, and pursuant to Article , submitted an attached declaration, which indicated the applicable scope of the Convention on Nuclear Safety to EURATOM, as well as the corresponding competence of EURATOM (IAEA, 1994a: article ). EURATOM added a third paragraph, which clearly declared that, pursuant to the regulations of 13 Article 15 (radiation protection) and Article 16.2 of the Convention (contingency measures related to urgent notice), the CEC and EURATOM members could enjoy the corresponding competence stipulated in Article 2.b (establishment of safety standards) and Chapter 3 (health and safety) in the EURATOM Treaty (Commission of the European Communities, 1999: 30). The second paragraph of the attached statement related to nuclear installation safety, and restricted EURATOM to exercising only the corresponding competences in Articles 1, 5, 7, 14, 16.1, 16.3, 17, and 19 (Commission of the European Communities, 1999: 30), and only in consideration of relevant ionizing radioactive protection. In short, EURATOM could establish a legal framework managing relevant nuclear installations of member states only within limited competence. In the context of the restriction of the competence of EURATOM by its member states, EURATOM submitted an attached statement to the Convention on Nuclear 13 Paragraph 3 of Declaration by the European Atomic Energy Community according to the provisions of Article 30(4) (iii) of the Nuclear Safety Convention, "The Community possesses competence, shared with the above-mentioned Member States, in the fields covered by Articles 15 and 16(2) of the Convention as provided for by the Treaty establishing the European Atomic Energy Community in Article 2(b) and the relevant Articles of Title II, Chapter 3 entitled 'Health and safety'." 17

18 Safety on January 31, 2000, and became a party of the Convention on Nuclear Safety, which came into effect on April 30, However, the attached statement excluded EURATOM from the competence to establish directives, and guide its member states to comply with nuclear safety regulations. Thus, the original intention of EURATOM to join the Convention on Nuclear Safety to improve the nuclear safety of its member states seemed to be only symbolic. However, Decision C-29/99 of the Court of Justice of the European Union in 2002 lifted some of the restrictions regarding the competence of CEC in the attached statement of the Convention on Nuclear Safety. In 1999, the CEC filed a lawsuit to the Court of Justice of the European Union, requiring that the third paragraph of the attached statement, regarding the restriction on the competence of the CEC, should be removed, and that the CEC should have the competence described in Articles 1 to 5, 7, 14, 16.1, 16.3, and 17 to 19 of the Convention on Nuclear Safety according to the EURATOM Treaty (Court of Justice of the European Union, 2002: I-11281). The Council defended that the request of the CEC was a pursuit of the expansion of their power (Court of Justice of the European Union, 2002: I-11298). However, in consideration of the EURATOM Treaty, especially Chapter 3 for the purpose of protecting the health of laborers and the general public, as well as the relevant regulations of the Convention on Nuclear Safety, the Court of Justice of the European Union decided that Articles 1 to 5 of the Convention on Nuclear Safety did not involve the obligations of the parties, while Articles 7, 14, 16.1, 16.3, and 17 to 19 were the corresponding competences of the CEC to fulfill their obligation of nuclear safety on behalf of EURATOM. Thus, the content in paragraph three of the attached statement of EURATOM to join the Convention on Nuclear Safety should be removed (Court of Justice of the European Union, 2002: I-11315). Although the above decision of the Court of Justice of the European Union expanded the competences of the CEC, such expansion was only a re-definition of the shared competence scope, thus, the CEC did not enjoy any exclusive competences. According to Decision C-29/99 of the Court of Justice of the European Union, the CEC re-submitted the terms regarding the scope of application of the Convention on Nuclear Safety to the IAEA (European Union, 2004) in order to re-define the scope of shared competences. 14 Decision C-29/99 of the Court of Justice of the European Union allowed EURATOM the competence to manage spent nuclear fuel and 14 "The Community possesses competences, shared with the above-mentioned Member States, in the fields covered by Article 7 and Articles 14 to 19 of the Convention, as provided for by the Treaty establishing the European Atomic Energy Community in Article 2(b) and the relevant Articles of Title II, Chapter 3, entitled 'Health and Safety'." 18

19 radioactive waste, as well as the establishment of framework directives. However, both the decision of the Court of Justice of the European Union and the terms regarding the scope of the application of the Convention on Nuclear Safety to IAEA by CEC in 2004 clearly expressed that the competences of EURATOM under the Convention on Nuclear Safety were shared competences between EURATOM and its member states (European Union, 2004). Decision C-29/99 of the Court of Justice of the European Union did not change the distribution of powers between EURATOM and its member states, thus, the CEC did not enjoy any exclusive competences. The fate of EURATOM to join the Joint Convention and the expansion of the competences of the CEC, were affected by enlargement of the Treaty establishing a Constitution for Europe. After the effect of the Joint Convention, on October 15, 2001, the CEC immediately proposed to the Council that EURATOM and the European Community should simultaneously apply to join the Joint Convention under the identity of integrative, regional, and international organizations, and become parties of the Convention. The first basic concept of the CEC was to combine environmental protection with the threat to the health of the general public and laborers, as caused by ionizing radioactivity. In the proposal, the CEC stated that the main tasks of EURATOM were to protect human health, while environmental protection was not within the scope of the EURATOM Treaty. In order to protect the health of the public while protecting the environment, EURATOM should join the Joint Convention and pay more attention to environmental protection, regarding its management of radioactive waste, by referring to the relevant regulations of the Treaty establishing the European Community (Commission of the European Communities, 2001: 3-4). Furthermore, as the subjects of European integration enlargement, EURATOM focused on the quality of management of spent nuclear fuel and radioactive waste by Central and Eastern European countries. For instance, Bulgaria, the Czech Republic, Lithuania, Romania, Hungary, Slovakia, and Slovenia had nuclear power plants, while Cyprus, Estonia, Latvia, Malta, and Poland had nuclear facilities, such as research institutes, hospitals, and industry, which would produce radioactive waste. The CEC assessed that it was difficult for EU candidate countries to transport their spent nuclear fuel and radioactive waste to Russian for reprocessing or interim storage. The final disposal facilities for radioactive waste in Central and Eastern European countries were constructed in accordance with the standards of the former Soviet Union. Hence, the CEC assessed that the facilities might not be entirely consistent with the safety standards of Western countries (Commission of the European Communities, 2001: 3). Thus, regarding EURATOM and European Communities 19